Too often, hundreds of thousands of dollars are spent on workplace investigations that could easily be resolved internally with proper due diligence
We have written a lot about workplace investigations — usually negatively. After all, they are the biggest boondoggle in employment law. High fees for largely non-legal work with reports that are hearsay and therefore cannot be relied upon in court.
But are there ever situations where such investigations can be done properly?
The short answer is yes, although even then they generally do not justify the cost.
One difficulty with workplace investigations is that they take place outside of the judicial system and evidence is not authenticated in the same way as in a court.
The MeToo movement is proof that harassment existed for decades and employees were not believed if they brought forth allegations. That is changing, but the pendulum may have already swung too far.
In one case we had, a chief executive was investigated for not greeting one employee on a Zoom call as they had others. To be clear, this is not the type of complaint that needs investigating.
We act for a doctor being investigated for an "unprofessional tone in an email."
When the complaint was brought to his attention, he responded as any rational person would; "Can I please have a copy of the email?"
No response.
He asked again. "Can I please have a copy of the email?"
No response.
He asked a third time.
Response: "Legal counsel for the company wants to meet with you tomorrow."
This next part is incredible. At the meeting, and still without the benefit of seeing the offending email, the doctor was told he was not allowed to attend his office or have access to his staff or emails until the matter was fully investigated — a process expected to take from weeks to one month.
It has now been more than a year, and yes, we did get him reinstated so he could return to work during the investigation, which is rare. Most employees being investigated are assigned to purgatory while everyone assumes they are guilty of something very serious.
It may seem like anyone can make allegations and have you investigated, and that is true in part because many law firms push for investigations to enrich themselves and many HR managers are quick to call for one lest they make an independent decision for which they are later faulted.
So, what can you do?
The Kafkaesque dystopia of workplace investigations often requires legal action.
In the case of the "unprofessional tone in an email," there were other issues at play in the workplace, as there often are with such complaints. Sometimes complaints arise from internal politics. It was necessary to bring a claim based on the inappropriate treatment of the employee, but it also became clear there was a political agenda, relating to the allocation of financial resources. Sometimes complaints are made in the hope that the accused employee will just give up and leave if they are investigated.
If you are accused of wrongdoing at work, it may feel as though you have no power or control during an investigation, and you are not entirely wrong, although the employer and investigator have legal obligations to you as well.
- The employer must conduct an impartial investigation.
- Typically, the workplace investigation begins with a complaint. Problems generally arise with the way that complaint is handled by the employer's investigator.
- The investigation rises or falls with the investigator.
- An internal investigator may have dealings with the situation or employee that prevents them from being unbiased. If an external investigator is hired and paid by the company, it may be very difficult for an employee to accept that investigator as truly unbiased.
- An employer may not be eager to hear bullying or discrimination was happening or tolerated in the workplace, especially at executive or upper levels.
Steps in a workplace investigation
What should happen after an employer receives a complaint about the actions of an employee:
- Conduct an immediate preliminary assessment of the complaint to determine whether an investigation is necessary, and whether any immediate action is required to protect the parties involved. Too often investigations are launched into trivial matters when the facts could be easily determined if HR or another suitable staff member spoke with the accuser, the accused and any relevant witnesses within a day or two of the complaint. Instead, employers will spend hundreds of thousands of dollars on outside investigators, both prolonging the process and creating unnecessary workplace stress.
- Create an investigation plan that outlines the scope, objectives and timeline. Consider who will conduct the investigation and gather the necessary resources: will the investigation be conducted internally or is an external investigator necessary? If you require an outsider, hire a retired judge who has experience in fact finding rather than in cross examination and will have the respect of various stakeholders. There are many retired judges happy to perform this work, often at lower costs than legal counsel would charge.
- Gathering relevant evidence by collecting documentation and conducting interviews with the complainant and the employee who is the subject of the complaint. Consider whether there is any physical or digital evidence, such as surveillance video or emails.
- Analyzing the evidence is one of the more beguiling aspects of the workplace investigation. Undoubtably, unreliable evidence will be considered by the investigator.
- An investigation report should detail the findings, along with conclusions and recommendations for next steps and any actions to be taken.
Problems courts have found with investigations include:
- Failing to be transparent or honest with the employee under investigation
- Failing to provide particulars of the allegations
- Failing to give the employee an opportunity to provide a full response
- Failing to put relevant information to witnesses
- Failing to consider relevant evidence
If you are the subject of an investigation, be sure to consult a lawyer at the outset so you can understand the process and determine if or when an investigation may not be proceeding fairly. It is important to know how best to respond before it is too late.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.