In conducting workplace investigations of personnel situations or other events, employers or those hired to conduct the investigation walk a tightrope to avoid causing more problems and creating potential liability. With “at will” employees, those without a contract and not unionized, unless you have policies or procedures requiring an investigation, it may be better to act without an investigation and proceed to termination or other action as appropriate. But, when employment laws, rules, regulations, policies, or agreements require an investigation or you believe one may be advisable in the situation, in order to limit or avoid future liability you should consider:
- What policies, procedures, precedents or laws require, address or limit an investigation?
- Who will conduct, who will be subject to and who must cooperate with the investigation?
- What is the purpose/benefit of the investigation and what report is required?
- How will the investigation proceed, be kept confidential, and be used by your business or others?
- What obligations are there to the investigated, cooperating, and other parties?
- Are the actions of the investigator consistent with applicable policies, procedures, laws, regulations and the rights of all involved parties?
- Are there reporting, confidentiality or conduct requirements imposed on the investigation?
- Will the result or content of the investigation be made public or disclosed to limited persons?
- Is it better to have a third party conduct the investigation, and who?
- Are appropriate waivers, consents and releases authorized?
While employee and business investigations often need to be done quickly after a report is made or an incident occurs, rushing into one without proper planning and direction could make the situation worse. If you have any questions about or have problems as a result of a workplace investigation, please contact us.