Workplace Investigations

What are workplace investigations and what is their purpose? Workplace investigations are an organization’s procedure for determining whether it was more likely or not that a policy was violated. The standard is whether there is corroboration, by a preponderance of the evidence, that there was a violation of company policy.

A workplace investigation can be conducted by an employee internal to the organization, such as an HR representative, or an external investigator, such as an experienced attorney. The benefit of using an internal investigator is that the person is intimately familiar with the business, the politics and the players. The benefit of using an external investigator is that the investigator has no preconceived biases about the players, is skilled conducting investigations, can create a proper report, and can sometimes create protected and privileged “work product” (attorney client privilege between the attorney and the organization). It is worth noting that investigations are not completely confidential by nature, but a seasoned investigator will attempt to maintain confidentiality and discretion during the procedure.

Generally the investigator will begin by interviewing the Complainant, then all witnesses, and then conclude by interviewing the Respondent.  The investigator will communicate to the Complainant, and each witness, that they are protected from retaliation for coming forward and that if they believe that they are being retaliated against as a “whistleblower” or the like, that they should report such retaliation immediately. The Respondent will also be “warned” not to retaliate against any witness or Complainant or he or she could be subject to another complaint.  The investigator will also review all other evidence, such as emails, documents, text messages, and video footage. Finally, the investigator will draft a report that analyzes the evidence and the relevant company policies that were potentially violated. In the report the investigator will make a finding (conclusion) based upon all the evidence and then will offer methods to remediate the situation, if applicable. Some remedies may include offering one-on-one training, suspension, or termination. Finally, the findings are communicated to those employees and managers that “need to know” said results.

It is imperative, in light of today’s legal climate, that all companies take complaints seriously and conduct unbiased, thorough investigations in response to all complaints. It is also critical that companies fix problems that are uncovered through the investigation process. The goal should always be to remediate issues internally so that the issues do not end up in the hands of a lawyer or government agency outside of the organization. If you need assistance conducting an internal investigation, contact DEMLP.

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Nicole Sorokolit Croddick is Counsel at Davison, Eastman, Muñoz, Lederman & Paone, P.A., where she focuses her practice on employment and labor matters. She consults companies on human resources issues and has conducted internal investigations on ethical and legal violations. With this breadth of experience, she has gained a deep understanding of the problems that exist in the modern workplace. Additionally, she has drafted employee handbooks, severance agreements, has updated hiring and employee discipline forms and procedures, and facilitated trainings on a variety of labor and employment law and compliance topics, including Continuing Legal Education. Nicole has also taken her experience and used it appropriately as a subject matter expert in numerous ethical/legal training videos for LRN Corporation, a leader in ethics and compliance training to major organizations worldwide.