Q & A

Questions & Answers

A workplace investigation is a timely, impartial, and thorough collection and analysis of facts and circumstances within a defined scope of issues. An investigation goes beyond initial fact gathering to resolve conflicting facts and perceptions in good faith.

It depends. Claims of unlawful conduct like sexual harassment or race discrimination are said to require an investigation. That is because EEO policies encourage employee complaints of that nature and state than an investigation will occur in response. Courts view investigations as the employer’s exercise of reasonable care in response to such concerns.

I recommend a two-part analytic to determine if an investigation is indicated that encompasses both legal claims as well as potential legal issues. First, is there suspected or alleged misconduct that if substantiated would prompt some level of disciplinary action? If so, are relevant facts or perceptions involved in conflict? When the answer to both questions is “yes,” an investigation is necessary to resolve the issue.

Sometimes the process of investigation is valuable even absent underlying conflict to allow affected individuals the opportunity to tell their stories.

Resolving conflicts in investigations is the most difficult task of the investigator. First, recognize that this is the investigator’s job. Especially in authentic “he-said, she-said” controversies where a factual dispute between the parties makes it clear that someone is not being truthful, the investigator should make a good faith finding. “Inconclusive” findings should be rare. The appropriate standard of proof in investigations is the preponderance of evidence standard. The question is whether the allegation appears “more likely than not” to have occurred.

In plain factual disputes, or where perceptions of the same facts or perceived motivations for actions are in dispute, thorough analysis that demonstrates a reasoned evaluation of the available evidence is key. Experienced investigators pursue all relevant information and respectfully consider the subjective perspectives of all parties toward good faith findings.

Claims of investigator bias from complainants and respondent employees are common. This is an issue for both internal investigators and third-party investigators. Both are paid by the employer leading to suspicions that the investigator will “find for the employer.” The seasoned investigator understands this concern and guards against conscious and unconscious bias at every step. Sound investigation process and careful analysis of the relevant evidence including credibility assessment address the concern.

Responsible employers recognize that disclosing and addressing the problem conduct of any employee serve the organization’s best interests.

Employer expectations of participating employees help support the integrity of an investigation. These “ground rules” are often termed “advisories” or “admonitions.” Ground rules typically cover expectations around confidentiality, prohibitions against retaliation for good faith participation in the investigation including raising concerns prompting the investigation, as well as the simple expectation to be truthful. The expectation of participation in the investigation process itself is another example.

Expectations of employees are communicated upon initial notice of the investigation, to begin investigation interviews, and again at the conclusion of the process. Expectations of confidentiality for non-supervisory employees of private employers require a case-by-case analysis in consideration of employee rights under the National Labor Relations Act.

Workplace or campus assessments take on a broader scope than typical investigations. Investigations answer, “What happened?” Assessments answer, “What is going on?” The scope of an investigation is driven by discrete allegations of a complainant. The scope of an assessment is “wide open” in comparison. Engaging an assessment places a high degree of trust in the investigator to manage scope appropriately.

Investigation costs relate directly to the number of allegations to be addressed, the volume of evidence, and the number of participants involved. Cost is a valid concern and I am happy to provide an estimate at the onset, as well as revised estimates as the process develops in coordination with the engaging employer around investigation scope.

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