The law requires that employers take all reasonable steps necessary to prevent discrimination, harassment, bullying, and retaliation from occurring in the workplace. As part of that obligation, employers must investigate all reports of alleged discrimination, harassment, or retaliation in the workplace. The investigation must be prompt, impartial, and thorough.
Workplace Investigations
If the investigation concludes with a finding that wrongful conduct occurred, the employer is legally required to take “immediate and appropriate corrective action” designed to end the wrongful conduct. If the employer follows the law and conducts a smart, proper investigation, the employer may be able to avoid or limit its liability in a future lawsuit.
Workplace Legal assists clients in workplace investigations either by (a) conducting the investigation for the client, or by advising and guiding the client who is handling the investigation internally or using an outside investigator.
When Workplace Legal conducts the investigation, we prepare a comprehensive investigatory strategy, identify potential witnesses, review all relevant policies and documents, and consider the best setting and approach for each witness interview. When interviewing parties or witnesses, we are constantly assessing motive and credibility. Throughout the investigatory process, we consult with the client’s boards of directors, corporate officers, and HR personnel to deliver objective, fair, and well-supported findings that the client can use to implement any required corrective action.
When our client conducts the investigation internally, Workplace Legal provides guidance and advice throughout the investigatory process, from assisting with the preparation of the investigation plan to determining the order of witness interviews to reviewing and revising (or drafting) the formal investigatory report. We also advise on the appropriate corrective action(s) that may be required given the findings of the investigation. Our oversight helps ensure a fair, objective, and thorough investigation that can withstand legal scrutiny from a judge or jury down the road.
When our client retains an outside investigator, Workplace Legal assists the client in selecting the “right” investigator for the issues in play. We then work with the investigator throughout the investigation to answer any questions the investigator has and/or to provide any follow-up evidence or testimony that the investigator may need. Our presence helps ensure that the investigator hears the employer’s best evidence which, in turn, maximizes the employer’s chances of a favorable outcome.
In every case, employers should undertake all investigations with the understanding that the employer may later have to prove that (1) the employer’s investigation was prompt, fair, and thorough; (2) the employer’s findings were “reasonable” based on the evidence gathered; and (3) the employer promptly took appropriate remedial action. Thus, Employers should assume at the outset that their investigations will be scrutinized in detail and second-guessed by a judge or jury.
Other Investigations
There are other instances when a workplace investigation is warranted even though it is not technically required by law. Most commonly, If an employer has a good faith belief that an employee has engaged in illegal activities or has violated company policy that could result in termination, an employer will undertake an investigation and make determinations as to what happened and how the accused employee should be disciplined, if at all.
Workplace Legal attorneys also advise employers through these other types of investigations, including employee theft of trade secrets and embezzlement investigations. In these cases, we frequently partner with digital forensic experts and/or forensic accountants to help us prove the employee’s theft, to secure the return of the stolen files/documents/data/money, and to ensure the deletion of the information from all of the employee’s personal computers and other devices.
