Investigations in the Workplace: 5 Steps Every Employer Should Take After Receiving a Complaint

An employee has made a complaint to management – now what? There are five steps that employers can follow to identify when an investigation is appropriate and how to properly use investigative tools at their disposal to conduct the investigation, come to the best conclusions possible, and preserve legal defenses.

Step 1: Determine Whether an Investigation is Needed

Deciding whether or not to conduct an investigation is an important decision that can have serious repercussions for the employer. The ability to show that a thorough and timely investigation was completed can offer an employer legal defenses if employees bring claims against the employer. The problem is that employees complain about a great number of things about the workplace and many of these complaints do not warrant an investigation. So, how does an employer know when to initiate an investigation? Employers should assess each complaint on a case-by-case basis, but as a rule of thumb, should consider investigating complaints related to the following, whether written or verbal, and even when prefaced by, “I don’t want to make a formal complaint, but …”:

• Harassment
• Discrimination
• Work rule violations
• Claims that the law has been violated
• Claims of safety or pay practice violations
• Formal complaints and grievances

Many employers fail to conduct investigations because they mistakenly focus on whether the complaint appears meritorious or not at the outset. Instead, employers should focus on whether they want to be able to show that an investigation was completed in order to preserve any possible defenses, even if the complaint appears to be frivolous.

Step 2: Come Up With an Investigation Plan

Once the employer has decided to conduct an investigation, the next step is to formulate the investigatory plan. This plan generally includes the following steps:

• Choosing an investigator. Different investigations call for different investigators. A member of the human resources staff is the investigator of choice for most run of the mill investigations. In situations where the issue or individuals involved are particularly sensitive (e.g., claims of sexual harassment or claims involving executives or top management), an outside investigator, such as an attorney, can offer specialized employment law knowledge and heightened confidentiality as benefits to the investigation.
• Identify Witnesses and Documents to be Reviewed. Once an investigator is selected, the investigator should outline a written plan for the investigation that should identify the steps to be taken to investigate the claims at issue. Usually, this includes identifying witnesses to be interviewed, documents to be reviewed, and any other steps that the investigator may find necessary to reach a conclusion as to the complaint.

Step 3: Identify and Use Appropriate Investigative Tools

As part of the investigation, the investigator should use all of the appropriate tools at his or her disposal to help investigate complaints. These tools may include:

• Interviews of witnesses
• Review of paper and electronic documents
• Search of individuals, computers, desks and other work spaces
• Monitoring of computer and internet use
• Drug testing

Step 4: Special Considerations

Employers should be aware of several potential problem areas that may affect their ability to conduct investigations:

• Employers Cannot Require Confidentiality (and should not promise it themselves): In the last year, the National Labor Relations Board (“NLRB”) has issued guidance stating that as a general rule an employer cannot require that employees involved in an investigation not speak to others about the investigation. The NLRB does provide, however, that employers may require confidentiality when the employer can show a particularized need for confidentiality. Employers should not demand confidentiality from employees involved in the investigation, unless the employer can identify specific reasons (there have been threats, etc.) that the investigation requires it. The NLRB may be overturned on this position, but be careful with confidentiality statements.
• Inadequate Notice of Workplace Monitoring: Unless employees have been properly notified about what their expectations of privacy should be in the workplace, those employees may argue that they have an expectation of privacy in certain areas of the workplace that the employer wants to monitor. Employers should notify employees not to expect privacy in the workplace in their handbook, and that their work areas may be subject to monitoring.
• Non-Existent or Non-Compliant Drug and Alcohol Testing Policy: In order to test employees for the presence of drugs and/or alcohol under Minnesota law, employers must have a written drug and alcohol testing policy that complies with Minnesota statutes.
• Defamation: Investigators must carefully avoid releasing information about an employee that may be false. In order to avoid the release of false information, the investigator and employer should not release information that cannot be supported by documents, testimony, or other evidence and should limit the report to those with a “need to know” in order to act.
• Retaliation: Employers must make sure to avoid any action by the employer or alleged perpetrator that may be perceived as retaliatory against any employee (especially the complainant) participating in the investigation.

Step 5: Concluding the Investigation and Taking Action

Depending on the nature of the investigation, the investigator should conclude the investigation and provide the relevant facts and recommendations to the employer either verbally, preferably in a conversation with counsel, or in a written report, copied to counsel. This report should provide the employer with the information necessary to make a determination about how to proceed. If some “appropriate action” (discipline, training, counseling, policy reminders) is recommended, it should be taken. The investigation and such action will often immunize the employer from liability, even in cases of meritorious complaints.

If you have questions regarding workplace investigations, please feel free to contact Jessica Hofrichter at jhofrichter@seatonlaw.com or at (952) 921-4624, or any Peters, Revnew, Kappenman & Anderson, P.A. attorney at (952) 896-1700.