In a perfect world, every employee would behave in a respectful manner at all times. In reality, workplace misconduct does occur, including sexual harassment, bullying, retaliation, discrimination, theft, violence, and other policy violations. When inappropriate behavior is observed or reported to HR, management, or the business owner, an employee investigation may be necessary to determine the facts and help protect the organization and the employees involved.
It is best practice—and often a legal requirement depending on applicable state law – for
companies to have an official complaint process outlined in their policies and to provide employees who experience, witness, or become aware of behavior that may violate company policies with one or more ways to report their concerns.
Seven Steps in an Employee Investigation
Once a complaint has been received, it is important to follow a consistent investigation process so that concerns are handled thoroughly and objectively. While every investigation will be different depending on the circumstances, the following seven steps provide a useful framework:
1. Record the Complaint
An employee investigation typically begins when a complaint of workplace misconduct is reported to HR, a supervisor, or the business owner. The complaint may come from the employee who was directly affected, a manager who was informed of the issue, or a third-party witness.
Once a complaint is received, it should be documented as soon as possible while the details are still fresh. Whenever possible, ask the complainant to provide a signed written statement that clearly explains who was involved, what happened, when and where the incident occurred, and whether there were any witnesses or supporting evidence, such as e-mails, text messages, photos, or video. Thorough documentation helps preserve the facts and provides a strong foundation for a fair and objective investigation.
2. Assess the Complaint
After gathering the initial information, review the complaint to determine how serious it is and whether it may be part of a larger pattern of workplace misconduct. Consider whether similar complaints have been made against the same employee, supervisor, or department, and whether additional steps are needed to make sure the investigation is fair and unbiased.
For example: If an employee reports that a supervisor made inappropriate comments and HR discovers that two other employees have made similar complaints in the past with no decisive outcome, the company may decide to have an outside HR consultant or employment attorney conduct the investigation to provide an objective review.
3. Prepare for the Investigation
Next, an investigator should be assigned to manage the investigation based on the nature of the alleged misconduct and the perceived risk level. Depending on these factors and the size of the organization, the investigator will typically be:
- Uninvolved manager
- HR professional
- Member of in-house legal counsel
Before taking action, the investigator should define the goals and scope of the investigation. This work keeps the investigation focused and identifies the key information that will be needed to reach a fair and objective conclusion. This includes:
- Identifying the issues involved: Determine which company policies or employment laws may apply to the complaint, such as anti-harassment, discrimination, retaliation, workplace violence, safety, or ethics policies, as well as any relevant federal or state employment laws.
- Identifying relevant individuals: Determine who may have information related to the complaint, including the employee who made the report, the employee accused of misconduct, coworkers who witnessed the incident, supervisors or managers who were notified, and any other individuals with relevant knowledge.
- Determining what evidence is needed: Identify documents and other information that may help establish the facts, such as e-mails, chat messages, text messages, security camera footage, or access badge records.
4. Take Precautionary Measures to Protect the Organization and Investigation
During a workplace investigation, it is important to prevent retaliation and de-escalate tensions. In some cases, separating the parties involved in the complaint by placing the accused employee on paid administrative leave pending the outcome of the investigation is the best choice. Here are some additional factors to consider to protect your organization during a workplace investigation:
- The investigator must disclose to the employee under investigation why the investigation is being conducted.
- If the investigator is an attorney, whether in-house or outside counsel, the investigator should explain that they represent the company and not the employee being investigated.
- While employees generally do not have a right to have an attorney present during an internal investigation, they may choose to seek their own legal advice, particularly if they believe they could face personal liability.
- If the employee under investigation raises their own complaint or grievance during the process, the company should evaluate whether the issue requires a separate investigation or can be addressed as part of the existing investigation.
5. Conduct Interviews
Interviews are one of the most important steps in a workplace investigation because they help establish the facts and clarify any conflicting information. This is also the process that gives everyone involved the opportunity to be heard. Interviews are often conducted in the following order:
- The complainant: Confirm the details of the complaint, clarify any inconsistencies or missing information, and identify any witnesses or supporting evidence.
- Witnesses: Gather independent information to help verify or refute the allegations and identify any additional evidence.
- The respondent (accused): Give the employee an opportunity to respond to the allegations, provide their perspective, and identify any witnesses or evidence that supports their account.
Note: Before conducting interviews, it is vital to remind all interviewees of the company’s anti-retaliation policies.
6. Gather and Evaluate Evidence
The investigator should collect and review all relevant evidence. The evidence should be evaluated carefully to determine what happened and whether it is more likely than not that the alleged misconduct occurred. When weighing conflicting accounts, the investigator should consider whether the available evidence supports each person’s statements, whether the accounts are consistent, and whether they are supported by witness testimony or other documentation.
It is important for the investigator to remain objective and base all findings on the facts rather than assumptions or personal opinions.
7. Report and Implement Findings
Once the investigation is complete, the investigator should draft a confidential report summarizing the evidence gathered, the investigation findings, and whether the allegations were substantiated or unsubstantiated. Human Resources and management will then determine the appropriate course of action, which may include formal disciplinary action up to and including termination, or further training and mediation. The company should also document any corrective action taken as a result of the investigation.
Once the report has been reviewed by HR or legal counsel, the company should communicate the outcome of the investigation to the complainant and the subject of the complaint while maintaining appropriate confidentiality. In many cases, sharing a summary of the findings rather than the full investigation report is the best practice.
While there is no requirement for the results of a workplace investigation to remain on an employee’s record for any specific period, it is often helpful for information relating to the outcome of the investigation to be accessible to the human resources or legal department should it become relevant for showing a pattern of behavior.
Conduct Employee Investigations with Confidence Through Fractional HR Support
Our Fractional HR services provide experienced HR leadership and practical guidance without the cost of a full-time HR team, helping businesses navigate complex employee issues and maintain compliance with state and federal employment laws to reduce legal risk. Our team is ready to help businesses conduct fair, thorough, and legally compliant workplace investigations.
Contact us today to learn more about how we can help your organization build a stronger foundation for long-term success through professional HR services.
Please note: This article is for informational purposes only and does not constitute legal or professional advice. Seay HR makes no representations or warranties, express or implied, regarding the accuracy, completeness, or applicability of the information contained herein.
Seay HR disclaims all liability for any actions taken or not taken based on the information in this article. Readers are solely responsible for their own interpretation and use of this information.
