How To Conduct An Effective Workplace Investigation

July 10, 2024

A Road Map to Fairness

By Elaine Reall, Esq.

Managers, supervisors, and overworked HR professionals all face the specter of a sensitive workplace investigation from time to time. Allegations of illegal discriminatory behavior, workplace harassment and/or bullying, hostile-workplace assertions, or just straightforward favoritism based on a workplace romance between employees all regularly confront employers.


When to Investigate


The first question that employers need to ask is, does a formal or informal investigation need to take place? Not all workplace gripes or groans warrant an investigatory response.


For example, mandatory overtime in understaffed healthcare facilities is the subject of numerous complaints. And while it makes good employee relations sense to address such an issue, nothing in such a scenario rises to the level of warranting an investigation. However, if a formal or internal complaint indicates the possibility or probability of illegal discrimination, physical or emotional abuse, criminal misconduct, retaliation for whistleblowing, or OSHA-related safety or health issues, an employer would be wise to seriously consider initiating an investigation.


If an actual complaint exists (as opposed to vague rumors), prompt investigatory action is best practice, as it preserves evidence, prevents fading of witness memories, and demonstrates employer credibility. Yet, in a situation where only rumors and secondhand observations abound, an employer must weigh the pros and cons of pursuing an investigation without an actual complaint serving as an investigatory road map.


Who Should Investigate


Employers should begin by assessing the experience and background of managers and HR professionals working for the organization. Do such individuals have training and experience with internal workplace investigations? How critical is the confidentiality of information? Is there a high likelihood of legal action?


When considering inside versus outside investigators, consider this quick checklist:


• Do legal issues of document protection and privilege exist?

• Will the workplace benefit from a factual/credibility determination by a disinterested party?

• Evaluate the need for a general versus detailed findings/report.

• What is the likelihood of administrate agency (MCAD, etc.) or court action?

• Consider the need for professional demeanor.

• What is the value of inside managers/HR professionals being trusted in sensitive situations?

As a general rule of thumb, an experienced investigator (regardless of internal or external status) will be the most cost-effective.


Timing of Investigation


Prompt investigations are better investigations. Hoping that issues will simply go away is a surefire way for an employer to torpedo a strong result. Timely investigations deal efficiently with issues such as fresh witness memories, existing documentation, and lack of employee turnover. Investigatory urgency also lends a certain energy to the findings or report.


Unfortunately, employees often delay reporting serious issues and incidents to an employer for a variety of reasons. Often, the first evidence of a pattern of sustained harassment comes from information gathered during employee exit interviews. The best way to avoid this result is to actively encourage employees to report problems or concerns while they are still small (and fixable). The use of IT tools to make reporting of employee concerns simple and non-confrontational is a great adjunct to the traditional open-door complaint process used by many organizations.


Strategy, Strategy, Strategy


Nothing is more vital than extensive planning before starting a formal workplace investigation. Take all, or most, of the following actions:


• Gather and review relevant workplace documents;

• Read personnel files of potential witnesses and ‘suspects’;

• Do a deep Google dive on relevant parties;

• Do initial assessment of the nature of the complaint;

• Obtain legal advice about whether the subject matter may be legally privileged; and

• Outline the who, where, and why of the investigation (best investigator, best location for interviews, format for witness statements).


Limit Scope of Investigation


Finally, the workplace is not a judicial setting. Narrow the scope of your investigation to factual determinations. Examples: did X do/ask/physically touch, etc.? Did X violate employer policy? Do not introduce legal jargon or conclusions into the investigation. Example: don’t ask if someone created a hostile work environment.


Written Reports


Where a written report is appropriate or necessary, plain but detailed language is best for an investigator’s notes. Witness answers plus the investigator’s impressions and observations (example: tone of witness, loudness of response, marked body language) should be detailed.


Include specifics in the notes and in the final report. Outside third parties will view such detail as evidence of due diligence on the part of an employer. And, lastly, don’t depersonalize the report’s language; include actual names and identifying information (dates and times, locations, witnesses, and interview format [in-person versus Zoom]).


Written Versus Oral Report


If it has been a significant investigation, an employer needs to create a separate, stand-alone written report. Tip: do not file such a report in a regular employee personnel file. A distinct investigation file should be created. Written reports should not attempt to draw legal conclusions.


Consider notifying the complainant(s) and accused party of the general outcome of the investigation. Failure to do this almost always leads to such parties looking for answers outside the workplace, including talking with a lawyer.


Last, but never least, strive for a proper investigatory behavior and demeanor:


• Learn the value of silence and open-ended pauses;

• Don’t rush through questions;

• Ask a question and then actively listen;

• Remember to include open-ended questions to encourage witnesses to talk;

• Maintain a detached demeanor (avoid emotionally charged statements); and

• Absolutely avoid promises or guarantees.


Conclusion


Following the guidelines outlined above will help you create a solid investigatory road map. If you have any questions or concerns about the above policies, it is prudent to contact a labor and employment attorney so that the best investigatory practices can be followed and you can, hopefully, avoid unnecessary litigation.


This article was published in the most recent edition of BusinessWest. Click the link here.

When Bias Creeps into Independent Investigations It All Becomes Tainted.

April 25, 2025
Case Overview: An Asian-American postal worker, Dawn Lui, allegedly became the target of a racial and gender-based harassment campaign after being assigned to lead a new location in 2014. Lui started working at the United States Postal Service (USPS) in 1992 and was promoted to postmaster in 2004, without issue or complaints. Both Lui and her supervisor agree that the coworkers at her new location called her racially motivated names, created false complaints and racially based rumors like that she couldn’t read or speak English, and created a rumor that she was engaging in a sexual relationship with her supervisor. Lui states that she was interviewed in an internal investigation about the alleged sexual relationship. She believes the allegations were created because the supervisor in question is married to an Asian woman. The supervisor claims that HR disregarded his complaints about racial bias regarding the employee. Where They Went Wrong: HR and labor relations officials proposed a demotion for Lui based off of the contested allegations. The demotion required Lui’s supervisor’s signature to move forward. The supervisor refused to sign the demotion and again brought up his concerns that the allegations were baseless and racially motivated. Because of his refusal to sign the demotion paperwork, he was temporarily removed from his position and replaced. His replacement signed off on the demotion and an investigation was not launched after the supervisor’s refusal. Lui appealed the demotion internally and a “neutral” official started an “independent” investigation. USPS argued that this investigation cleared them of making racial and sex based discriminatory actions. Given the possible racial bias and demotion that occurred in this case, Lui filed suit against USPS alleging disparate treatment, a hostile work environment, and unlawful retaliation under Title VII. After the United States District Court for the District of Washington granted summary judgment to USPS on all of the Plaintiff’s claims, the case was appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit affirmed the USDC’s granting of summary judgment on the retaliation claim, but they found the USDC erred in their finding that the Plaintiff failed to establish a prima facie case of discrimination when they issued summary judgment on the disparate treatment and hostile work environment claims. The Ninth Circuit found that Lui had been removed from her position and demoted to a smaller location with a pay cut, and she was replaced by a white man with less experience. The Ninth Circuit also found that there was a genuine dispute of material fact regarding whether the decision to demote Lui was independent or influenced by subordinate bias. The official never interviewed witnesses, ignored the reports about racial bias, and solely went off the existing reports used in the original decision. The concerns that the employee’s supervisor raised that the allegations were fabricated and racially motived had not been investigated or addressed. The court ruled that a jury could reasonably find that the “independent” investigation wasn’t truly independent. The Court relied heavily on the Cat’s Paw theory of liability. The Cat’s Paw Theory is an employment discrimination doctrine name after the fable “the Monkey and the Cat” by Jean de La Fontaine. In the fable the cat is enticed by the monkey to retrieve chestnuts from the embers of a fire so they both can share. In the fable the monkey eats the chestnuts while the cat has nothing but burned paws. It came to refer to someone doing dirty work on another’s behalf. It made its way into employment law in Staub v. Proctor Hospital, 562 U.C. 411 (2011). An employer can be held liable for discrimination if the information used in the employment decision was based off a biased supervisor, or other biased employee. Even if the ultimate decision maker was not biased, the information remains tainted. Employer Takeaways: Independent investigations are only independent when an independent investigator re-reviews the information available and interviews witness(es) directly. Having an investigator blindly sign off on an investigation that others allege to be racially motivated without due diligence to verify a lack of bias allows bias to seep into employment decisions. If a separate investigation had been conducted, with fresh interviews from a non-biased 3 rd party, the decision would have been free of the original allegations, and the employer would have avoided liability in subsequent suit. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

Royal Law at Thunderbirds Hockey Playoff Game in the Executive Perch

April 21, 2025
Friday April 18th: Amy Royal, Fred Royal, and Derek Brown attended the Springfield Thunderbirds playoff game! They enjoyed watching the Thunderbirds play the Charlotte Checkers from the Executive Perch.