The ultimate guide for conducting effective HR investigations

Employee complaints are not something to be taken lightly. Regardless of how a complaint is communicated, as an HR professional, it’s your duty to investigate promptly and thoroughly. To properly do so, Littler’s How to Conduct Effective Workplace Investigations webinar covered the investigation process, sharing the ins and outs of getting to the bottom of any complaint that comes to your team. From scoping out the investigation to meeting with the employees involved to writing the final report, these are the most crucial tips for a flawless investigation.

The basics of an investigation

Before detailing how to go about a proper, thorough investigation, it’s important to outline when and why to conduct one in the first place, as well as who should conduct it.

When to investigate

All complaints should be reviewed but conduct a risk assessment to detail the appropriate response strategy and the amount of resources needed. Any EEO (equal employment opportunity) allegations should be investigated. Discrimination based on a protected trait and retaliation are serious situations, and the complainant does not specifically have to use these terms to allude to such issues. Allegations of significant policy violations, like managers instructing off-the-clock work or threats of physical harm, are also alarming concerns.

Why investigate

Conducting an investigation allows your company to determine what happened in a particular situation and how to reach a conclusion that is based on the best available facts. Any investigation typically includes interviews with the respondent, complainant and witnesses and a review of all relevant documentation and other evidence. By being prompt and thorough, you minimize the risk of lawsuits and liability, and potentially eliminate problematic behavior that worsens the workplace environment.

Who should investigate

An ideal investigator is both qualified and impartial. There should be no conflict of interest between the person conducting the investigation and the complainant or respondent. Pick someone who has the time to conduct a thorough and prompt investigation, whether it be someone on your company’s HR team or an external investigator. Someone from outside of your organization may be unfamiliar with workplace dynamics and need time to get up to speed, but they will generally be more objective and can give employees a sense that their concerns are being taken seriously.

Role and scope

Properly scope what the investigation is about. Be prepared to explain your reasoning behind your choices, such as why you chose not to interview someone or look at certain documents. Early into the process, make sure to have a clear understanding of:

• The allegations that have been made.
• The policy or policies at issue.
• The individuals you need to interview to determine if there has been any sort of policy violation.

Preliminary decisions and preparation

“The investigation process is more of an art than a science. There is not a one-size-fits-all approach because every case has a unique set of facts and circumstances,” says Stacy Gabriel, founding member of Gabriel & Ashworth.

Your discretion is necessary when conducting interviews, but the following best practices will offer a strong baseline:

• Who to interview and in what order? Start by speaking to the complainant, followed by the complainant’s witnesses who are allegedly going to substantiate their concern. Move next to interviewing the respondent and their witnesses.
• Format of the interview. Try to accommodate the complainant, respondent and witnesses in terms of where they want to meet. Interviews can be held virtually or live, on-site or in public places.
• Recording interviews. Handwritten or typed notes are acceptable, but, if possible, assign a neutral party in the room to act as a scribe so you can focus more intently. If done on a virtual platform like Zoom, ask for clear consent to record the audio and video, but still take notes in case something goes wrong. Always remember to record your name, the date, who the person you are interviewing is and their job title.
• Written statements. Make a point of getting every complaint in writing and give the respondent a copy of the complaint before their interview. Ask for a written rebuttal from the accused but avoid insisting on one.
• Notifying the accused. The accused should be notified in a timely manner. Withholding notification can stall the investigation and potentially cause more problems.
• What to do with those involved. Stick to the status quo when it comes to the complainant, but the respondent can be placed on leave or moved temporarily. Close tabs should be kept on the two employees if they continue to work in the same workspace.

Interview prep

Use the following checklist to ensure you’re fully prepared for each interview you give:

1. Review written complaints, statements and other relevant documents.
2. Examine applicable personnel policies.
3. Assess personnel records of the complainant and accused, including any “supervisor” files.
4. Review Electronically Stored Information (ESI), such as video surveillance.
5. Inspect “comparative data,” such as pay disparity and discriminatory hiring allegations, if applicable.
6. Create a chronology of key events.
7. Outline questions but leave room for flexibility and adjust to individual answers.

The funnel technique

Sarah O’Keefe, an associate at Littler, outlined the funnel technique, a way to structure your questions in an investigation. Keep this in mind when preparing for witness interviews:

• Start with broad and open-ended questions, making sure you get full responses and circling back when you don’t.
• Summarize what you’ve heard back to the witness so they can offer facts that were left out.
• Clarify information by focusing on any conflicting comments that you received from other witnesses.
• Pin down answers by exhausting subjects and asking, “Is there anything else?”
• Use your active listening skills, pay attention to subtle changes in demeanor, and follow up on cues such as eye contact, gestures, and body language.

How to investigate

Once you’re fully prepped and ready to begin interviewing and gathering information, plan to follow these guidelines through the investigation process.

Beginning the conversation

Explain who you are, what you are trying to investigate, and why you are interviewing the person. Announce your position of neutrality and explain your expectation of confidentiality and no retaliation. Remember to record their name, date of employment, position, and supervisor.

General rules for conducting interviews

Determine if a personal relationship exists between witnesses and the complainant or accused. Cover the 6 “W” questions (who, what, when, where, why, witnesses), such as asking when an event occurred, who was present, and what happened. Pry for a deeper explanation when words like “harassment,” “retaliation” and “discrimination” are used, as employees use these words in broad and different ways.

Don’t be afraid to ask hard questions but explain that those questions don’t mean you’re siding against or don’t believe them. Avoid expressing preliminary findings, personal opinions, or likely outcomes. Always close by asking if the interviewee has any additional information, concerns, or relevant documents to share.

Interviewing the complainant

Most interviews, whether it be with the complainant, respondent, or witnesses, should look generally the same. However, at the end of the interview with the complainant, inquire about the desired outcome with a question like, “What does success look like for you?” Explain the next steps to be taken and expected timing and ensure that you’ll provide regular status updates.

Before closing investigation

Determine if additional interviews need to be conducted or records need to be reviewed. If appropriate, debrief with management preliminary findings and next steps.

The report

Keep in mind that the report should be written for a third-party audience and must remain objective and factual. Include all dates, times and identities of witnesses, and use quotes properly when appropriate. If legal complications arise, without documentation, it can be argued that no investigation occurred, so be thorough and intentional when writing your report. An exceptional report is formatted with the following structure:

1. Author and date of report.
2. Scope of investigation.
3. Executive summary.
4. Investigation process, including a list of witnesses.
5. Allegations and rebuttal.
6. Findings.
7. Conclusion.
8. If specifically requested, provide any recommendations, using wording such as, “This likely occurred/did not occur as alleged.”
9. Attach key documents.

The final steps

After writing your report, you’re not quite done with the process. Determine corrective action, if any, and document it in personnel files. Give copies of the report to appropriate parties and issue a “closure memo” to the complainant and accused, reiterating that your company will not tolerate any retaliation. Consider any HR implications going forward, such as whether the complainant and accused can continue working together. Follow up with the complainant to ensure no further issues and preserve your notes, report, and any ESI.