S. Amir Kohan

How to conduct an employee investigation?

Organizational misconduct is a serious issue that must be addressed by effective and timely investigations. When faced with evidence of a potential violation of policy or law, employers must take steps to conduct an employee investigation. It is important to approach these investigations objectively, with a thorough review of facts, in order to reach a fair outcome.

The first step in an employee investigation is to designate an investigator. This should be someone qualified and familiar with the relevant policies and processes, who is seen as impartial and unbiased. The investigator should collect all relevant documents, record all witnesses, and secure any physical evidence. During the investigation, the investigator should take great care to preserve confidentiality, particularly when interviewing witnesses. It may be necessary to take personnel action before the investigation is complete to protect the health, safety, and general welfare of the workplace.

It is essential to establish the scope of the investigation and secure the necessary resources. For example, experts may need to be consulted or specialized assets may be required. During the investigation, it is important for the investigator to ensure that all aspects of the fact-finding process are addressed, including interviewing all relevant witnesses. Witnesses should be asked open-ended, non-leading questions, and all witnesses should be treated with respect. They should also be reminded of any related confidentiality policies. If the employee contends he/she/they were treated differently because of a protected category, the employer should consult the EEOC guidelines for additional questions that should be asked.

As the investigation proceeds, the investigator should give careful thought to the evidence. Documenting and organizing information can help keep track of the facts and allow for better analysis. Here, experts and additional resources may be called upon, such as document and data analysis tools.

Throughout the investigation, the investigator should assess whether corrective measures should be implemented, such as policy or procedure changes, disciplinary action, and/or further training. When appropriate, the investigator may also recommend additional investigation if further evidence is uncovered.

Finally, when the investigation is complete, the investigator should compile a comprehensive report, detailing the facts and findings in an organized manner. Care should be taken to ensure that the report is factual and unbiased. The report should then be presented to the decision-makers in the organization, who will evaluate the information and decide on the appropriate course of action. The investigation should be finalized once the issue has been addressed and the accused has been treated fairly.

By following these steps, organizations can ensure that employee investigations are conducted in an objective, thorough, and efficient manner. This will help protect the organizational interests and maintain a safe, productive workplace.



Protection Against Retaliation

An employer should make clear that it will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. An anti-harassment policy and complaint procedure will not be effective without such an assurance.” Surveys have shown that a common reason for failure to report harassment to management is fear of retaliation. See, e.g., Louise F. Fitzgerald & Suzanne Swan, “Why Didn’t She Just Report Him? The Psychological and Legal Implications of Women’s Responses to Sexual Harassment,” 51 Journal of Social Issues 117, 121-22 (1995) (citing studies). Surveys also have shown that a significant proportion of harassment victims are worse off after complaining. Id. at 123-24; see also Patricia A. Frazier, “Overview of Sexual Harassment From the Behavioral Science Perspective,” paper presented at the American Bar Association National Institute on Sexual Harassment at B-17 (1998) (reviewing studies that show frequency of retaliation after victims confront their harasser or filed formal complaints).

Management should undertake whatever measures are necessary to ensure that retaliation does not occur. For example, when management investigates a complaint of harassment, the official who interviews the parties and witnesses should remind these individuals about the prohibition against retaliation. Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives. See, EEOC Enforcement Guidance.

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