This is the third in a series on workplace investigations, an effective tool to uncover – and deal with – problems that threaten to undermine your business.

Neutral investigation

Image courtesy of Stuart Miles and

This week we’ll explore the ins and outs of conducting a neutral investigation.

You’ll want assurance that the investigation proceeded properly and without bias if the case goes to court. The California Supreme Court has ruled that a jury’s job is not to determine whether an employee’s alleged misconduct occurred, but whether the employer conducted the investigation appropriately and reached reasonable conclusions based on that investigation. So how you conduct your investigation can be the difference between a judgment in your favor, or a huge damage award to an employee.

The first thing an employer needs to do is choose an unbiased investigator.

  1. Don’t choose someone who witnessed an incident involved in the investigation. That person will have preconceived ideas and is no longer impartial. Instead, her or she is a witness.
  2. Don’t choose someone in the chain of command. That includes someone who reports to the accused, is lower on the corporate ladder than the accused, or someone who supervises the accused. A supervisor might be motivated to find the employee innocent so that the supervisor won’t look bad.  But even if the supervisor is unbiased, there might be a perception of bias. Employees have to believe that accusations are taken seriously. If they believe that allegations of misconduct are only investigated by those with a motive to find the accused innocent, they won’t bring problems to management’s attention.

The investigator also needs to have requisite training and experience in workplace investigations. Therefore, it’s imperative to choose a human resources professional trained in workplace investigations who is also uninvolved in the situation. Or you can choose an outside investigator, typically an attorney trained in investigations.

Using an attorney might allow communications between management and the investigator to be covered by attorney-client privilege. If the case goes to court, however, you will likely have to take another look at whether you want to maintain that privilege.

As an employer, take care not to promise confidentiality you can’t deliver. Confidentiality has to be balanced against the need for a thorough investigation. Witnesses need a certain amount of information, as does the accused employee, in order to effectively respond to the allegations against him or her. However, information should be shared only with those who need to know. Witnesses should also be advised – preferably in writing – not to talk about the investigation or try to influence potential witnesses.

The need for an experienced investigator becomes clear when it comes to discussing the thoroughness of an investigation. An inexperienced investor might not interview enough witnesses. For example, the investigation might extend to former employees or even the company’s customers. What’s more, some witnesses might have to be re-interviewed because of additional information uncovered during the course of the investigation.

An experienced investigator interviews – and re-interviews – all appropriate witnesses – and knows when he or she has enough information to stop interviewing and proceed to the next step.

The experienced investigator also knows whom to interview first – usually it’s not the accused – and how to ask open-ended, non-leading questions. The complainant shouldn’t be invited simply to tell his or her story. The investigator, with knowledge of relevant law behind him or her, will have to do some probing. And, while the investigator might want to start off in a non-confrontational manner with the accused, at some point, he or she will have to press that person on specifics about each accusation.

Credibility is another important factor. In cases with conflicting versions of events, the investigator has to weigh each party’s credibility and make a determination. Occasionally an investigator may decide that no determination is possible, but that’s the exception, not the rule.

In most circumstances, an investigator can make a determination, and that determination will be based, in part, on credibility.
Proper documentation is essential.  You’ll want to document interviews with witnesses as well as steps taken during the investigation. When the investigation is complete, the investigator will write a report summarizing the results of the investigation and setting forth the conclusions reached. The report should discuss any credibility determinations, possible discipline to be imposed and the reasons for the discipline.

Next: How an investigator properly evaluates credibility.

Workplace Investigations, Part I: The Basics
Yes, You Need a Workplace Investigation

If you have questions or concerns about workplace investigations, contact Johnson Employment Law for guidance, 949-238-8044.