Workplace Investigation FAQs: Tackling Workplace Conflicts with Confidence

Experienced HR professionals know that conducting a workplace investigation is an art form. Effective investigations require sound judgment, strategy, objectivity, and strong interpersonal skills.

Whether addressing complaints of harassment, discrimination, bullying, or other policy violations, employers are frequently faced with questions about when an investigation is required, who should conduct it, how confidentiality is handled, and steps to complete the investigation. The answers are not always straightforward, and each situation presents its own unique challenges.

To help navigate these issues, we've compiled answers to some of the most frequently asked questions about workplace investigations in California. The FAQs below highlight considerations for employers seeking to conduct prompt, timely, thorough, and defensible investigations.

When is a workplace investigation required?

In California, if an employer “knew or should have known” of an allegation of harassment, discrimination, or retaliation, a workplace investigation is required, and the investigation must satisfy certain requirements under California’s Fair Employment and Housing Act (FEHA). The FEHA requires that the investigation be prompt, thorough, and fair, and results in timely corrective action, as appropriate.

Even if an allegation does not involve unlawful behavior, it is still a best practice to investigate allegations of other serious policy violations, such as bullying, fraud, and conflicts of interest.

At the outset, it is important for the employer to determine the specific allegations at issue. As an example, an employee may claim they are being “bullied,” and when you ask for more specific information, they say they are being teased due to their disability. When the conduct involves a protected classification, such as disability, race, gender, sex, religion, etc., this is likely an allegation of harassment, obligating you to conduct a workplace investigation that satisfies FEHA’s requirements.

Who can conduct a workplace investigation?

Employers may use an internal employee as the investigator or hire an external party, such as a licensed private investigator or attorney. In instances of discrimination or harassment allegations, an employee investigator is often someone from human resources.

The investigator should be knowledgeable about standard investigatory practices, including:

• laws and policies relating to discrimination and harassment,
• investigative techniques related to questioning witnesses,
• documenting interviews and
• analyzing information.

Selected investigators should also have sufficient communication skills to conduct the interviews and deliver the findings. For more complex or serious allegations, it is important for the investigator to have prior experience with those issues.

California’s Civil Rights Department clarifies that there is no one standard training program for workplace investigators. Internal investigators are usually trained by HR professional organizations or law firms on relevant laws and skill-building exercises.

Also, the question of who can conduct an investigation is different from who should conduct the investigation. Is it important that the investigator is fair and appears unbiased. If your internal employee is somehow implicated in the complaint, including as a fact witness, it is recommended to hire a third-party investigator, such as an outside attorney, to ensure neutrality. We also recommend using a third-party investigator when the accused is in upper management or leadership, as they may have the potential to “sway” or pressure findings by internal human resources.

Can the investigator keep the complaint or information obtained during the investigation completely confidential?

No. During an investigation, employers can only promise “limited confidentiality,” that is, that the information will be shared only with those who “need to know,” such as witnesses, company leadership, and human resources. An investigator cannot promise complete confidentiality because it may be necessary to disclose information obtained to complete the investigation and take appropriate action.

Additionally, as part of the “fairness” or “due process” required, the accused has a right to respond to the allegations against them. While the identity of the person who brought the complaint may be kept confidential in some cases, the employer must still inform the accused party of the nature of the complaint before disciplining them or taking corrective action.

In some cases, it may be obvious to the accused person who complained. This is why it is important for the employer to remind all participants of anti-retaliation protections under the law and company policy.

What are the steps for conducting an investigation?

CEA recommends conducting workplace investigations in six steps:

• Gather and review evidence, and consider any temporary personnel changes while the investigation is pending, such as a change in reporting structure (be sure not to retaliate against the complainant!)
• Create an initial witness list
• Schedule interviews (typically starting with the complainant, then accused, then witnesses, but investigators should use their best judgment on the order of interviews)
• Prepare interview outlines and conduct the interviews
• Draft report and findings
• Close out and engage in prompt corrective action, as appropriate

What if the complaining party refuses to participate or retracts their complaint?

It is rarely appropriate for an employer to fail to investigate a complaint simply because an employee asks not to elevate their concerns. This is because the standard to investigate is whether the employer “knew or should have known” of the allegation – not whether the complainant wishes to move forward.

The employer may also try to assure the complainant that the matter will be handled professionally, without retaliation, and with as much confidentiality as possible. An employer may try to persuade the complainant to participate, but if they refuse, the employer should continue conducting the investigation with the information available. The employer may also let the complainant know they can change their mind and participate, but the company has a duty to promptly investigate.

Another reason it is best to continue with the investigation is that the potential harasser may also target other employees now or in the future.

How quickly should we start and complete our investigation?

The investigation should begin as soon as is feasible. While it should proceed and conclude quickly, the investigator should also ensure the process is thorough and fair.

For serious allegations, such as claims of physical harassment or a threat of violence, it is usually recommended to start the same day as the complaint is received. If it is less urgent, a rule of thumb is to contact the complaining party within a day or two and strive to finish the investigation within a few weeks (although that depends on several factors, including the availability of witnesses).

How can I learn more?

If you are a manager or HR professional who wants to confidently tackle workplace investigations, join CEA for our Mastering Workplace Investigation Series on July 15 and 16! This is a no-judgement course designed for professionals who have never conducted an investigation, or who may have conducted a few investigations, but want to brush up on best practices.

This is an interactive series that allows attendees to gain practical experience through a mock investigation, including exercises and collaborative group discussion. Attendees who complete both classes will also receive a training certificate.