Effective Workplace Investigations
Simple Guidelines for Employers to Consider
by Susan L. Nardone and Mary Frances Palisano
A
ll businesses, big and small, are faced with
understanding of the specific allegations before moving for-
employee complaints that focus on compli-
ward with an investigation.
ance issues. Companies that take preventative measures, such as developing meaningful policies and training employees on
Step 2: Is an Investigation Necessary? If So, What Type of
Investigation?
compliance, have a distinct advantage over
Although it is important for employers to respond quickly
those that do not. Still, every company receives complaints.
to a complaint, how the company responds will vary. Not all
Those that respond quickly at the first sign of trouble, con-
complaints require a full-blown, lift-every-rock investigation.
duct prompt and thorough investigations, and take remedial
Instead, in determining whether an investigation is necessary
action when necessary, are sure to foster a positive working
and the appropriate type of investigation, employers should
environment and reduce their legal risks. Moreover, if the
consider the following:
facts of a complaint evidence a possible violation of criminal
law, conducting an effective internal investigation becomes
• Are key facts in dispute?
critical in avoiding prosecution and mitigating loss.
• If not, is there reason to believe there may be other victims,
The following steps serve as a guide to conducting an effective workplace investigation.
or a need to determine the extent of harm?
• Is there a potential violation of a civil or criminal law?
• Is there a legal obligation to investigate?
Step 1: Identify the Specific Allegations
After Sam Supervisor tells Emily Employee that she will be
promoted only if she submits to his sexual advances, Emily
• Is the complainant a member of a protected class?
• Would the conduct violate the employer’s code of conduct
or ethics?
knocks on the door of Henry HR Manager, tearfully reports
Sam’s inappropriate and unwelcome behavior and hands
An investigation may not be necessary where there is no
Henry a detailed written complaint. Henry embarks on a tar-
question that the conduct occurred, such as when the alleged
geted investigation that leads to Sam’s discipline. Sounds per-
bad actor admits the conduct, or when, on its face, the com-
fect, right? Unfortunately, this scenario is not how most work-
plaint does not allege any violation of company policy or
place complaints unfold. In the more typical situation, Henry
law. However, before concluding that an investigation is not
listens sympathetically as Emily describes various events over
necessary, the employer should examine carefully the facts
many months that may be easily subject to interpretation. In
and circumstances. To be clear, it is certainly safer to conduct
other situations, the complaint comes not from the victim but
an investigation in some form than to forego it. If the com-
from a coworker (or is anonymous) and is made not to human
pany elects not to conduct an investigation, the decision and
resources but to a supervisor or co-employee.
reasons for it should be documented. The employer also
The simple reality is this: Complaints come in many forms
should follow up with the complainant and encourage the
and from many sources. Regardless of the form or source of
complainant to report any new or additional information or
the complaint, employers should ensure they have a clear
conduct.
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The formality of the investigation
agency knocking on its door; however, it
governing laws, and of the work environ-
also can vary. Sometimes, a relatively
is important to prepare for the worst. A
ment. When choosing an internal inves-
quick and informal investigation is suffi-
company’s general counsel, management
tigator, the employer should pay atten-
cient to gather the information neces-
or compliance officer should have a plan
tion to the investigator’s role and
sary to reach a conclusion and effectuate
in place that includes retaining an experi-
position within the company to avoid
an appropriate resolution. Other times,
enced white-collar criminal defense attor-
the appearance of bias or partiality. An
the investigation is more complex.
ney at the first sign of trouble.
outside investigator, such as an attorney
When the complaint is lodged by law
enforcement or involves allegations of
criminal conduct, certain actions should
or consultant, is often preferred, particu-
Step 3: Select the Proper
Investigator(s)
larly in sensitive investigations.
The investigator must be an effective
be taken. The company should retain a
Choosing the right investigator is
interviewer and communicator and able
white-collar criminal defense attorney to
critical. Regardless of who is selected,
to gain the trust of interviewees. The
conduct the investigation. Allegations of
the investigator or investigative team
purpose of the investigation is to gather
illegal activity have the potential to
must be credible, unbiased and objec-
facts, and witnesses must feel comfort-
severely damage a company, so it is
tive (and perceived as such) in order to
able revealing those facts.
imperative to have an investigator who
uphold the integrity of the investiga-
will ensure that management and/or the
tion. Naturally, an investigator should
board knows how best to proceed.
possess the requisite skills and training
Step 4: Define the Scope of the
Investigation
Where there are allegations by law
to conduct a proper investigation. Sim-
An inadequate or incomplete investi-
enforcement, gaining credibility with
ply put, the job of the investigator
gation can be as detrimental as no inves-
the government is often critical. The
should be reserved for actual, experi-
tigation. For example, a sham investiga-
government will review the actions
enced investigators. If the allegations
tion, or one conducted simply to create
taken by the company in considering
are criminal in nature, a white-collar
a paper trail, will undoubtedly be viewed
whether to charge the company and also
criminal defense attorney may be the
as such. The goal of the investigation is
in evaluating fines and penalties. The
right choice to hire as the investigator.
to resolve the problem and to help avoid
United States Department of Justice
Sometimes an investigative team
or limit liability. Let’s face it, investiga-
guidelines (DOJ 2008 guidelines), which
makes sense. An investigative team offers
tions are often challenged, whether jus-
also may come into play, contain poli-
several advantages. The members of the
tified or not. Companies that conduct
cies concerning corporate cooperation
team work together to ensure that all
prompt and thorough investigations are
better able to defend themselves.
with the government and are incorpo-
necessary tasks are completed thorough-
rated into the United States Attorneys
ly and in a timely fashion. Additionally,
At the start of the investigation, the
Manual. The DOJ 2008 guidelines focus
having two investigators present during
investigator should determine the scope
on the DOJ’s policy that corporate coop-
interviews enhances thoroughness, since
of the inquiry, which will keep the
eration credit be based on disclosure of
one investigator can lead the questioning
process on track. Flexibility is impor-
relevant facts about the underlying crim-
while the other investigator acts as the
tant, since new issues may arise during
inal conduct. Credit for cooperation
note taker and identifies areas for follow
the course of the investigation that
does not depend on the waiver of the
up. Finally, bringing investigators with
require a change of or expansion in the
attorney-client and work-product pro-
different perspectives together on an
scope. Documenting the scope of the
tections. For example, credit does not
investigation offers diversity in commu-
investigation at the outset, and any
depend on whether a corporation has
nication style and approach.
changes, is an important step in the
when
process. On occasion, the investigator
ney-client privilege or work product,
selecting an investigator include the
and the company may disagree over the
such as notes or memoranda generated
nature of the complaint, the objectives of
scope of the investigation. Whenever
by attorneys during witness interviews
the investigation, and the size of the
possible, it is best to come to an agree-
of witnesses. Moreover, prosecutors may
company. For some companies, using a
ment over the scope to avoid a future
not consider whether a company termi-
member of the employee relations or
attack on the investigation.
nated or disciplined an employee for
human resources staff is preferred when
After determining the scope, the
produced materials protected by attor-
Additional
considerations
investigating complaints of discrimina-
investigator should develop an investi-
No company wants the Federal Bureau
tion or harassment because of his or her
gation plan. The plan should include
of Investigation or another government
knowledge of the company’s policies and
who will be interviewed and in what
purposes of determining cooperation.
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order, where the interviews will take
and discrimination, they must be pulled
relevant information. A company’s
place, and what documents or other evi-
into the investigator’s file.
desire not to ‘bother’ employees or to
dence will be collected. It bears repeat-
An entire article can be written about
usurp the time of high-level executives
ing that the investigator’s plan must
social media and how it has come to
must give way to the needs of the inves-
remain flexible throughout the process.
impact nearly every aspect of work life.
tigator to collect relevant facts.
Neglecting to be as thorough as possible
Investigations are no exception. Rele-
The investigator should consider
during the interview stage of the inves-
vant information about workplace con-
whether the target/subject of the inves-
tigation is a common mistake.
duct is often found on social media
tigation or other relevant witnesses are
sites, and reviewing social media posts
aware of the investigation. If the inves-
The
company
should
consider
whether interim measures are necessary
in the public domain is acceptable.
tigation concerns potential criminal
while the investigation is being conduct-
However, some states have made it
conduct, certain witnesses may individ-
ed. Interim measures may include paid
unlawful for an employer to request or
ually or collectively modify their ver-
administrative leave for the complainant
require an employee to provide a pass-
sions of the incident or falsify informa-
or the accused, or temporary re-assign-
word or otherwise to grant an employer
tion or potential evidence. Counsel also
ment to another position or supervisor.
access to a personal account or service.
should be aware of which potential wit-
For investigations involving alleged
On Aug. 28, 2013, New Jersey passed
nesses are obligated to cooperate due to
criminal conduct, identifying employees
legislation that prohibits an employer
their employment or as a result of an
employment contract.
who need to be removed from the office
from requesting social media usernames
and denied computer access may be crit-
and passwords from job candidates and
When a privileged investigation is
ical. Each situation requires an individu-
employees. Investigators and employ-
being conducted, counsel is acting to
alized assessment that takes into account
ers should be guided accordingly.
gather information and provide legal
what is best for the individuals involved
under the circumstances.
Step 5: View All Relevant Documents
and Company Policies
1
Whether and when to issue a litiga-
advice to assist the company. The compa-
tion hold as a result of an internal
ny’s interests may be contrary to or con-
employee complaint is a topic best left
flict with the interests of individual offi-
for another discussion, as the question
cers, directors and employees. For these
cannot be answered in a vacuum. How-
and other reasons, it is important for
The collection and review of docu-
ever, an attorney demand letter, lawsuit,
counsel to clearly describe the ground
ments is essential to any investigation
or subpoena would seem to necessitate a
rules for the interview at the outset,
and should begin as soon as practicable.
litigation hold, so if the investigation is
before substantive questioning begins.
The documents to be gathered depend on
being conducted under those circum-
Specifically, counsel should advise every
the nature of the allegations but may
stances the employer should consult
witness that: 1) outside counsel was hired
include documents provided by (or refer-
with counsel about the steps to take to
to act on behalf of the corporation only,
enced by) the complainant and accused,
effectuate an appropriate hold.
is not the employee’s attorney and does
written policies and procedures, codes of
conduct or ethics, personnel files, prior
not represent the employee’s individual
Step 6: Interview Witnesses
interest; 2) the interview is protected by
relevant complaints and investigation
The investigator will determine who
attorney-client privilege and that privi-
files, organizational charts, and supervi-
should be interviewed and in what
lege belongs to the company, not the
sor files. For investigations involving
order, again keeping the need for flexi-
employee; 3) only the company has the
alleged criminal conduct, collecting infor-
bility in mind. Generally speaking, the
right to waive the privilege, and the com-
mation about the computer system and
complainant should be interviewed first
pany may disclose all or part of the
retention policies may also be important.
so the investigator can understand the
employee’s statements to law enforce-
With increased reliance on electronic
allegations. The alleged bad actor
ment or a third party; and 4) the inter-
forms of communication, emails, text
should be interviewed soon after the
view must be kept confidential (except
and voice mail messages, as well as pho-
complainant to provide an early oppor-
for the personal attorney of the witness)
tographs, are front and center in many
tunity to address the allegations. To
in order to maintain the privilege.2
investigations. Hitting the “send” but-
determine other possible interviewees,
The interviewer should confirm that
ton forever memorializes thoughts and
the investigator should consider those
the witness understands the instruc-
actions. Because these communications
who observed the incident, individuals
tions and document that fact in any
often figure prominently in workplace
identified by the complainant and
memoranda relating to the witness.
investigations involving harassment
accused, and anyone else who may have
Most companies have an anti-retaliation
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policy, which should be reviewed with
lines. The report generally should not
witnesses at the time of the interview.
employer’s attention. For example, the
contain any legal conclusions, and dis-
investigation may reveal that the
Often interviewees ask that a third
tribution should be limited to those
accused would benefit from training to
party (such as a coworker, union repre-
individuals responsible for making a
improve his or her management style,
sentative or attorney) be present during
final determination regarding any
that the complainant needs a refresher
the interview. In such a case, the investi-
remedial action.
on performance standards, or that the
gator should consider whether the interviewee is a target of the investigation,
the nature of the relationship between
company needs to train its employees
Step 8: Properly Maintain
Confidentiality
on a particular policy.
The employer should follow up with
the interviewee and the third party, and
In order to safeguard the integrity of
the complainant and remind the partic-
the impact the third party’s presence will
the investigation, the investigator
ipants of the company’s anti-retaliation
have on the confidentiality and privacy
should consider a request for confiden-
policy. Even though the investigation
of the investigation. If a third party is
tiality at the outset of each witness
has concluded, monitoring the work
permitted to attend an interview, the
interview. However, in light of recent
environment may be necessary, particu-
investigator must make it clear that the
National Labor Relations Board (NLRB)
larly
third party is not permitted to partici-
decisions
accused continue to work together.
pate in or interfere with the interview.
Opportunity
guidance,
Step 7: Properly Document
the Investigation
In order to create a reliable and com-
and
the
Equal
Employment
Commission
where
the
complainant
and
(EEOC)
investigator
should
refrain from imposing a blanket confi-
Endnotes
1.
See “An Act prohibiting the require-
dentiality requirement. The NLRB’s
ment to disclose personal information
2012 decision in Banner Estrella Medical
for certain electronic communication
plete record, the investigator should
Center suggests that imposing confi-
document every step of the investiga-
dentiality may be appropriate when
tion. Except in privileged investiga-
the investigator has a legitimate need
tions, the investigator is the fact gath-
to: 1) protect witnesses, 2) avoid spoli-
devices by employers,” L. 2013, c. 155.
2.
Upjohn v. United States, 449 U.S. 383
(1981).
3.
Banner Health System d/b/a Banner
erer whose purpose is to develop and
ation of evidence, 3) avoid fabrication
Estrella Medical Center and James A.
record facts. The investigator should
of testimony, or 4) prevent a cover-up.3
Navarro, Case 28-CA-023438. 350
avoid making assumptions or engaging
The investigator should document
NLRB No. 93 (July 30, 2012).
in speculation.
when these circumstances exist.
Susan L. Nardone is a director in the
When documenting witness interviews, the investigator should reference directives or warnings given to
the witness at the outset of the inter-
Step 9: Take Corrective Action Where
Necessary
Finally, the employer should act upon
employment and labor law department at
Gibbons. As an experienced litigator, she has
represented employers in defense of a wide
view, and record the facts provided.
the results of the investigation. For exam-
variety of employment-related claims in
Some investigators prefer to share their
ple, if the complaint is substantiated, the
numerous courts and agencies. She is a mem-
notes with the witness, ask the witness
corrective action should be designed to
ber of the New Jersey Lawyer Magazine
to confirm their accuracy, and then
stop the inappropriate conduct and pre-
Editorial Board. Mary Frances Palisano
secure the witness’s written approval. If
vent it from occurring in the future.
is counsel in the firm’s criminal defense
a potential witness was not inter-
When taking remedial action, the com-
department, where she focuses her practice on
viewed, the investigator should docu-
pany should ensure that its policies are
litigating and counseling clients in all phases
ment the reasons why.
uniformly and consistently applied. In
of federal and state criminal proceedings and
A written investigation report is an
an investigation relating to a potential
quasi-criminal matters. She also represents
effective means of organizing the facts
criminal matter, the government may
clients in administrative, professional ethics
gathered during the investigation. The
consider the discipline imposed by the
and licensing proceedings that often relate to
report should describe the scope of the
company against the employee found to
criminal matters. She is a trustee of the
investigation as well as the facts gath-
have acted unlawfully when evaluating
NJSBA’s Criminal Law Section, an appointed
ered and the investigation process. It is
the company’s compliance program.
member of the New Jersey Supreme Court
also helpful to identify the documents
Even when a complaint is not sub-
Committee on Model Jury Charges, and a
reviewed, witnesses interviewed, and
stantiated, the investigation may reveal
trustee of the Association of Criminal
relevant company policies or guide-
a workplace issue that requires the
Defense Attorneys of New Jersey.
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