How to Conduct a Workplace Investigation

How to Conduct a Workplace Investigation

Workplace Investigation“I’m missing $50 from my purse.  I think Susan stole money from me!” 

What do you do when an employee comes to you with this complaint?  These are certainly words you hope to never hear from an employee, but, unfortunately, sticking your fingers in your ears and singing, “La-la-la-la-la, I can’t hear you!” at the top of your lungs isn’t an acceptable business practice.

We’d all love for our workplaces to run as smoothly as possible, but the unpleasant reality is that sometimes situations arise that demand investigation. 

Complaints and/or accusations, as well as accidents and other incidents may necessitate workplace investigations.  Though there may be a variety of reasons for putting on your gumshoes and conducting an investigation, the basics of how to perform an investigation remain the same. 

Speed is critical when conducting a workplace investigation:

The purpose of an investigation is to determine the facts:  what happened, and why it happened.  Workplace investigations might not be as glamorous or titillating as those carried out on popular detective shows, but the success of any investigation — whether it’s in the workplace, or being conducted by your favorite actors on TV, or by law enforcement officials in the real world — critically hinges upon speed.

It’s important than an investigation in your office starts as quickly as possible after the complaint or accusation has been made.  Evidence will deteriorate or disappear, and human memory is a faulty thing that fades and even changes over time.

Do you have to conduct an investigation even if your employee doesn’t want you to?

Sometimes employees will report a situation, but say they don’t want to cause a problem, and request that you take no action.  Does the company still need to act?  The answer is yes!

Once you’ve been made aware of a situation that poses liability for the company, you have an obligation to act.  If an employee requests complete confidentiality, you may not be able to promise that, but you can assure them that you will protect their privacy as much as possible.

Determine the best person to conduct the investigation:

Your first step is to determine who the best person is to conduct the investigation.

  • It should be someone who has neither a close nor an antagonistic relationship with either the accused or the complainant.
  • They must be objective and emotionally detached.
  • They need to possess a good sense of discretion.
  • They shouldn’t have a vested interest in the investigation’s outcome.

There are times that it’s helpful to bring someone in from outside to conduct the investigation — just be aware that the process may then fall under the terms of the Fair Credit Reporting Act.

Start the process off on the right foot:

All investigations should be conducted in an open-minded manner, without a predetermined outcome, and in a non-discriminatory fashion.

The complainant and the accused have rights to as much confidentiality as is possible.  For example, if management casually spreads the word that Susan might have stolen from Melissa and it turns out to not be true, Melissa may have a good case for defamation.

Preserve as much evidence as you can:

If there is a physical scene to document, such as the desk where Susan keeps her purse, take pictures early on, before anything can change.  Collect evidence from all of your company’s electronic media — emails, chat records, cell phones, PDAs, and anything else your business uses — before it can be destroyed.

You should already have a policy in your handbook stipulating that you have the right to view anything on a corporate computer, cell phone, PDA, etc.  Also, suspend the company’s record retention policy temporarily to avoid a piece of evidence accidentally being shredded.

Use caution when conducting workplace investigations:

Questions will arise about employees’ expectations of privacy, and the company’s right to gather evidence.  Depending on how you wish to handle this, you may want to consult with your attorney.  A lot will depend on what you have outlined in your employee handbook.

An employer can limit the employee’s privacy expectations with a policy stating that desks, lockers, cubicles, and offices are subject to inspection.  In the absence of such a policy, you can stipulate that failure to cooperate in an investigation is cause for disciplinary action.

Be careful about physical inspections that can result in problems for the company.  For instance, you would not want to take Susan’s purse without her permission and look for Melissa’s money.  Always request permission before looking through an employee’s personal items, such as a purse or briefcase, unless inspections of those items are a routine part of your corporate security.

If you’re talking with an employee and they want to leave, allow them to do so.  Never restrain an employee and prevent them from leaving, as you may be charged with false imprisonment.  And, of course, be cautious about physical inspections of an employee, which can lead to charges of invasion of privacy.  Hopefully, it goes without saying that it’s just not okay to frisk and strip search Melissa in an attempt to find Susan’s money!

Prepare detailed questions for everyone involved:

Prepare detailed questions for the complainant, the accused, and all witnesses.  It’s important you get all of the information you need, but you don’t want to start the interview off by creating a defensive respondent!

  • The interviews should focus on who, what, when, where, why and how.
  • Don’t interrupt, always ask if there is anything more to add, and use silence as a method of extracting extra information (this last tactic can be remarkably effective with people).
  • Start with general questions, and then move to more specific ones.
  • Rephrase key questions and ask them a second time to determine if the information stays consistent.
  • Phrase questions in a neutral manner that is neither accusatory nor confrontational, and pay attention to their body language as well as their answers.
  • Don’t hesitate to ask tough or embarrassing questions, but keep them for later in the interview.

Keep meticulous notes of all investigative interviews:

Keep very detailed notes of every interview.

  • Assume that the information you are gathering will be reviewed by attorneys and presented to a jury.
  • Never record your opinion or speculation; only record what is said.
  • Don’t assume that talking with just some of the witnesses is enough.
  • You must speak with everyone involved, as a key piece of information may come from the very last person you talk to.

Memories are faulty and not everyone will tell you the exact same thing in the exact same way.

After you’ve gathered all of the information, you may have to re-interview some of those involved more than once in order to clarify information.

How to finalize the workplace investigation:

Once you are satisfied that you have all of the pertinent information, you are ready to make a decision.  You may very well have conflicting information to consider, in which case you will have to assess credibility and resolve factual disputes.

It is important to focus on the specific issues of this incident.  For instance, if you have an employee who has had poor attendance and a bad attitude, and is now accused of theft, but the results of your investigation are inconclusive, you would not want to terminate them.  However, you might advise the accused that if the issue is raised again, you will assume the first incident was true and will apply appropriate discipline.

Only share information with those who have a need to know.  Keep the circle as small as possible.  Reiterate to everyone that retaliation will not be tolerated, and that the law protects those who have made a complaint, as well as those who are witnesses.

Your last step is to prepare a final written report about the outcome of your investigation.  The final report should include the important facts, the methods used in the investigation, the evidence collected, and the conclusions drawn.  Depending on who is doing the investigation, the report may also include the recommended actions.

The wrap-up:

We always hope that Susan will realize that she left her money in her other purse and sheepishly apologize to Melissa, and that all will be well.  If that doesn’t happen, unfortunately, you’ll find yourself conducting a workplace investigation.  In that event, the only other advice I can give you is to buy yourself a Sherlock Holmes cap so that you look super-snazzy while you do your detective work.  Or maybe a trench coat.  Those look pretty smart too.

Originally published in the Kitsap Peninsula Business Journal.

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