A step-by-step guide to investigating employee complaints and responding appropriately.
KEY POINTS
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When employers learn about allegations of misconduct, they should respond promptly and determine whether an investigation is warranted. A prompt, impartial, and thorough investigation can help promote a safe, fair, and productive work environment and help prevent misconduct from recurring. Here are some guidelines for conducting a comprehensive investigation.
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Note: If employees are covered by a collective bargaining agreement, additional procedures or representation rights may apply during interviews and disciplinary actions. |
Take all complaints seriously.
Whether you receive a formal or informal complaint, take all complaints seriously, regardless of who is involved. Encourage employees to report issues before they become severe or pervasive and without fear of retaliation. Provide employees with multiple avenues to raise complaints, including their own supervisor, other supervisors, and HR (or the individual responsible for HR functions).
Launch a prompt investigation.
Begin the investigation as soon as reasonably possible after learning of potential misconduct. While no single timeline applies to all situations, employers should avoid unnecessary delays and document any reasons for extending the investigation.
Remain impartial and be thorough. Depending on the circumstances, consider whether you need to hire an outside third party to conduct an impartial investigation. Consider having a witness or note-taker present during interviews. Investigators should be trained on the process and instructed to remain objective.
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Note: If a complaint involves threats of violence, workplace safety concerns, or a potential criminal act, take immediate steps to protect employees and contact law enforcement when appropriate. |
Protect confidentiality to the extent possible.
Protect the confidentiality of the investigation to the best of your ability. However, avoid promising confidentiality, since it may not be possible to keep all information completely confidential. Explain that the company will keep information confidential to the extent possible for a thorough investigation and as permitted by law. Share information learned during the investigation only with individuals who have a legitimate business need to know.
Consider interim protective measures.
Consider whether temporary measures are needed while the investigation is ongoing. Depending on the circumstances, these measures may include:
- Separating employees involved in the complaint
- Adjusting schedules or reporting relationships
- Offering remote work arrangements when appropriate
- Placing an employee on paid administrative leave
Take care to avoid punishing the complaining employee (or the perception that you are) while implementing temporary measures.
Create an investigation file.
Create a confidential file to document the complaint as well as the steps you take throughout the investigation process. Keep the investigation file in a secure location separate from personnel files. In the file, retain:
- All interview notes
- All communications with witnesses, the complainant and the respondent
- All written witness statements
- All documents that relate to the allegation
- The investigator's report
- Where applicable, documentation notifying appropriate parties of the investigation results (subject to confidentiality and legal requirements) and any remedial action taken
Take steps to prevent retaliation.
Make sure employees understand that they will not be retaliated against for raising complaints or participating in an investigation.
Retaliation may include termination, demotion, reduced hours, undesirable assignments, threats, intimidation, or any action that could discourage an employee from reporting concerns or participating in an investigation.
Include anti-retaliation provisions in equal employment opportunity, anti-harassment and other applicable policies. Remind all parties of these provisions at the outset of the investigation.
Monitor the workplace during and after the investigation to help prevent retaliation.
Prepare to interview appropriate parties.
Identify who you will interview (the complainant, each witness, the respondent) and prepare a list of questions. Interview each party separately, in private, ideally with another individual to serve as a witness to the investigation. Many investigators choose to speak with witnesses before interviewing the respondent.
During interviews, never offer any opinion or say anything to interviewees that would indicate you have already reached a conclusion (such as, "I believe you," "this is a meritless complaint," etc.). Take detailed notes and look for inconsistencies, opportunities for clarification, additional evidence, and the names of other potential witnesses.
Interview the complainant.
Explain the investigation process and ask the complainant questions related to what happened, who was involved, when it happened, and how it has affected them. Other questions should address whether there were any witnesses or whether any other co-workers may have been subjected to the same or similar behavior. Repeat your notes back to the complainant to ensure you understood the allegations and captured the complaint accurately.
Interview witnesses.
Interview witnesses separately and remind them that your company encourages employees to participate in investigations without fear of retaliation. Inform witnesses that you are conducting an investigation into allegations of misconduct and ask whether they have information relevant to the allegations being investigated.
If they have information pertaining to the misconduct, ask for the specifics of what they observed before, during and after the alleged incident.
Interview the respondent.
Explain the accusations that have been made against the individual. Describe the investigation process and assure them that no decision has been made yet with regards to the merits of the complaint. Ask the individual for their version of events and whether there are any witnesses or evidence that may corroborate their story. Ensure that the individual provides a response to each of the complainant's allegations.
Gather evidence.
If there is any evidence of the alleged misconduct beyond witness statements, take all necessary steps to protect and preserve it. Once a complaint is reported, preserve potentially relevant records such as:
- Emails
- Text messages
- Instant messages
- Personnel records
- Security footage
- Phone records
- Social media communications used for business purposes
Suspend routine destruction of records that may relate to the complaint.
It is a best practice to preserve all business records, whether in paper or electronic form, as soon as you learn about a dispute. This is especially important if you reasonably anticipate a legal claim. Consult legal counsel to ensure appropriate holds are placed on all relevant documents and information.
Evaluate credibility.
The resolution of misconduct complaints often depends on the credibility of those involved in the investigation. Establish and use guidelines for weighing the credibility of the parties in an investigation, such as the consistency of each individual's statements, any corroborative or contradictory evidence, and other relevant factors. Avoid judging credibility based on position, seniority, personality, or personal opinions. Focus on facts, consistency, corroborating evidence, and firsthand knowledge.
Prepare the report.
When preparing the investigation report, include a chronology of events, a list of witnesses, the facts of the case, and any evidence you may have been able to obtain. You may also be asked to include conclusions regarding the allegations and recommendations for preventing similar issues in the future.
Take corrective action.
If the investigation determines that misconduct likely occurred, take prompt and appropriate corrective action. The corrective measure should help prevent future incidents and be proportionate to the severity of misconduct. Examples of common forms of corrective action include:
- Coaching
- Additional training
- Written warnings
- Suspension
- Reassignment
- Policy revisions
- Termination
Employers should apply corrective action consistently and document the reasons for the action taken.
Follow up.
Notify both parties that the investigation has concluded and communicate appropriate information about the findings, consistent with confidentiality, privacy, and legal requirements. When corrective action is warranted, communicate only the information that is appropriate to share. When sharing results with the complainant, confirm that the complainant understands the findings, even if they disagree with them. Additionally, schedule one or more follow-up conversations with the complainant to help ensure the conduct has stopped and that no retaliation has occurred.
Retain investigation records.
Document each step of the investigation as it occurs. Contemporaneous documentation can help demonstrate that the employer responded promptly and appropriately. Retain investigation records according to your record-retention policy and any applicable federal, state, or local requirements. These records should be maintained separately from employee personnel files.
Conclusion
When an employee raises a concern, respond promptly, investigate fairly, document your actions, and take appropriate corrective action when necessary. Consider consulting legal counsel or a third-party investigator as needed, such as when allegations involve harassment, discrimination, retaliation, workplace violence, senior leaders, multiple employees, or the possibility of litigation.
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