How to Conduct a Fair and Just HR Investigation

People complain from time to time. We’re human, after all! We might complain to our family and friends about weekend chores, or we may commiserate with co-workers about the bad office coffee or a tight deadline. 

These small complaints aren’t too troubling for HR. But when an employee files a formal complaint about serious employee misconduct, like workplace harassment, it’s the responsibility of human resources to sort everything out.

Sometimes, however, it’s not so clear-cut who is in the wrong or what actions need to be taken. That’s why HR investigations are a crucial fact-finding mission to uncover the truth, make decisions, and restore order.

Through a thorough investigation, everyone involved in a complaint is heard and justice can be reached.  

Develop an HR Investigation Protocol

It is advisable – and in some cases legally required — to investigate a filed complaint. There are laws protecting staff against discrimination, sexual harassment, retaliation, and other safety concerns, including Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Occupational Safety and Health Act (OSHA), the Sarbanes-Oxley Act, among other state and local nondiscrimination laws.

HR investigations must comply with these laws to maintain a safe and productive working environment for all employees. Before deciding whether and how to address a complaint, however, consider discussing it with your legal team to guarantee that you are taking the appropriate measures for the situation at hand.

A well-defined internal investigation protocol ensures that each person involved receives fair treatment while protecting the organization from potential liability. With an established protocol, you can rely on the rules to conduct a workplace investigation properly and promptly, with reliable outcomes and documented results. This can help protect an organization’s reputation and foster respect among employees. 

Follow the Protocol Throughout the Investigation Process

An effective HR investigation process includes several key components and criteria for determining outcomes, such as corrective action or termination. All procedures should follow a step-by-step process in line with state laws related to privacy and security.

1. Take Immediate Action if Necessary

If an employee faces a possible safety risk, it is crucial to take immediate action to protect the employee and other team members. Depending on the subject of the complaint, HR may suspend or remove the employee in question during the investigation process if it is legally permissible. It may also be necessary to take actions that ensure the security of other employees’ information (such as removing their personal contact information from a central database), and to protect HR from liability.

2. Designate an Investigator or Team of Investigators

Before an HR investigation can commence, you’ll need to decide who will investigate the issue. In some cases, it could be you or another HR manager. You may, however, need to assemble an entire team including legal counsel and oversight from your direct boss. The ideal investigators are independent and do not have conflicts of interest, such as involved family members or long-term acquaintances. Remember, this person or team will have access to sensitive data collected during the course of an inquiry.

It’s also important to consider the individual’s fundamental traits and responsibilities, including:

• Significant experience in the field so that they can bring expertise to the effort.
• Excellent communication skills so that they can effectively collect information from witnesses and other stakeholders.
• A high level of integrity and objectivity so that their conclusions remain unbiased. 
• Commitment to ethical conduct at all times while upholding the standards of confidentiality associated with their role.
• Close attention to details to identify potential problems or conflicts and obtain reliable evidence.
• The ability to think critically and problem-solve while considering multiple perspectives.
• Excellent organizational skills to ensure that evidence is properly documented and presented in court if necessary. 

Knowing these traits ahead of time can help you make informed decisions when selecting an appropriate candidate for the job.

3. Establish a Timeline and Plan

Set your team up for success by defining the scope of the inquiry. This includes identifying what questions need to be answered, who will provide information, any relevant documents or other resources, and whether or not there are any legal issues involved. At this stage, you or the investigator will likely consider what evidence needs to be gathered to support the findings.

Once the scope of the investigation is established, you can create an investigative timeline. This helps investigators manage their workload and plan accordingly. Some factors that can influence this timeline include the availability of witnesses; access to appropriate resources; scheduling conflicts; any legal deadlines; and potential financial implications for your business.

Before the investigation begins, consider creating a checklist for each step in the process, including specifying tasks that need to be completed. You can also use software programs or specialized databases to stay organized and keep track of progress made throughout the investigation. During these task-planning sessions, it’s essential to consider both short-term and long-term objectives as well as potential risks or unforeseen events that may occur throughout different phases of an investigation. 

A detailed roadmap with milestones can help investigators mitigate risk and proactively address concerns early on. This way, you won’t have to deal with more problems that arise and cause damage or disruption within an organization.

4. Gather all Relevant Information and Evidence

During this stage, you or the investigator will collect all relevant evidence and conduct interviews to gain more insight. To get an accurate assessment, gather all documents, emails, HR records, performance reviews, and other types of relevant physical evidence. You may also review any digital evidence that might be available and applicable, such as video surveillance footage.

It is essential that witnesses you interview feel secure and protected. Prioritizing confidentiality, assuring them the conversation will be kept private, and helping them understand their rights can encourage them to speak freely without fear or risk of consequences.

Once the interview starts, it is best to ask open-ended questions and focus on gathering facts, not opinions. Effective interviewee questions are asked unbiasedly without leading the witness or implying any conclusions or judgments. In addition to paying close attention to the information they willingly give, consider what questions they avoid answering. 

Lastly, to receive reliable answers, it’s important interviewees stay composed and not make unfounded accusations, veiled or direct threats, promises of exchange (such as “quid-pro-quo”), or use intimidation or coercion tactics.

Examples of questions to ask during an investigation interview include:

• What happened on the day in question?
• Describe any conversations you had with the other party.
• Can you provide any evidence that supports your account of events?
• What do you believe led to this situation occurring?
• How did this incident make you feel emotionally and physically?
• Do you know of similar incidents occurring in the past or recently?
• Is there anything else that could be relevant to the HR investigation?

It’s also vital to take careful notes or record the interview so that HR can accurately document and review all information collected during the investigation process.

5. Make a Decision Based on the Evidence Collected

Once interviews and evidence collection are complete, the HR investigator or team can review all evidence from the parties involved and any other sources. At this point, it is up to the investigator(s) to use their discretion and decide whether a complaint is valid.

Once you’ve made a final determination, it’s time to decide whether to take disciplinary action, such as suspension or termination of an employee. Compile all records of the investigation process and any decisions made into one central place. This documentation proves that you followed protocol in case legal actions are taken at a later stage.

6. Generate a Report and Communicate the Decision

In the last stage of the process, you and your team will generate an investigation report that informs the relevant stakeholders of your findings and final decision in writing. The written statement can be communicated with them in person and via email for their records. After delivering the decision, you may need to give the employee(s) time to process the information and address any questions or concerns.

In HR investigations, it’s essential that everyone involved is treated fairly and with respect throughout the entire process. Consider following up with complainants and employees after an investigation to provide closure on the incident and ensure that similar occurrences do not happen again.

Helping Your Staff Feel Safe

Hopefully, you won’t have to deal with many HR investigations throughout your career. One thing that can make it an easier process is creating a safe and supportive work environment before any issues arise. You can do this by focusing on positive employee relations and workforce wellbeing.

When you focus on work-life wellness, you build trust and provide a space where employees feel comfortable speaking up when they need to. The trust also lends itself to a more cooperative staff if an investigation occurs, making it as quick and painless as possible for everyone involved.

If you want to build a better work-life wellness journey for your employees, reach out to a Gympass Wellbeing Specialist today!

References 

• Age Discrimination. (2023). US Department of Labor. Retrieved on February 16, 2023 from https://www.dol.gov/general/topic/discrimination/agedisc#:~:text=The%20Age%20Discrimination%20in%20Employment,conditions%20or%20privileges%20of%20employment. 
• OSH Act of 1970. (2023). United States Department of Labor. Retrieved on February 16, 2023 from https://www.osha.gov/laws-regs/oshact/completeoshact. 
• Proper Workplace Investigations Can Help in Litigation. (December 1, 2022). SHRM. Retrieved on February 16, 2023 from https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/workplace-investigations-best-practices.aspx. 
• Sarbanes-Oxley Act. Cornell Law School. Retrieved on February 16, 2023 from https://www.law.cornell.edu/wex/sarbanes-oxley_act#:~:text=The%20Sarbanes%2DOxley%20Act%20. 
• Suspending an employee. (December 5, 2022). Citrus HR. Retrieved February 16, 2023 from https://citrushr.com/blog/hr-headaches/how-to-suspend-an-employee/. 
• The Americans with Disabilities Act (ADA) protects people with disabilities from discrimination. (2023). ADA.gov. Retrieved on February 16, 2023 from https://www.ada.gov/, 
• Title VII of the Civil Rights Act of 1964. (2023). U.S. Equal Employment Opportunity Commission. Retrieved on February 16, 2023 from https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964#:~:text=Title%20VII%20prohibits%20employment%20discrimination,Pay%20Act%20of%202009%20
• 10 Employee Investigation Questions & Best Practices. (February 6, 2020). HR Acuity. Retrieved February 16, 2023 from https://www.hracuity.com/blog/best-practices-questions-for-complainants-in-a-workplace-investigation/.