Checklist for Employers Conducting Misconduct Investigations

Checking off list for employers to take when investigating employee misconductWhenever an employer learns of employee behavior that’s inappropriate, unlawful, or violates company policies, it’s time to investigate. California law may require an employer investigation (e.g., for harassment), but even if not legally required, a prompt, fair, and reasonable investigation can help prevent or defend against a potential legal claim. Here’s a handy checklist for employer internal investigations.

Preliminary Considerations

__  Decide whether to investigate:

__  Consider whether the employer has received a complaint and from whom the complaint was received.

__  Consider whether there’s a legal duty to investigate.

__  Depending on the severity of the allegation at the outset, evaluate whether to take any of the following actions pending the outcome of the investigation:

__  Temporarily transfer the accused to separate the accused from the accuser. (Don’t move the accuser, because it could be construed as retaliation for making the complaint.)

__  Place the accused on administrative leave pending investigation. (Unpaid leaves may raise exempt-status problems.)

When to Investigate

__  Begin the investigation promptly after learning of the allegations.

__  Review and follow the company policy on investigations, if one exists.

Who Should Investigate

__  Assign an unbiased, competent investigator to conduct interviews.

__  Consider using human resources personnel, an outside consultant, or an attorney.

Where to Conduct Interviews

__  Select a neutral location for the interviews, e.g., a conference room or location outside of the workplace.

Whom to Interview

__  Decide preliminarily on whom to interview:

__  Person making accusation.

__  Main witnesses.

__  Employee accused of misconduct or inappropriate workplace behavior.

__  Determine whether any of the employees selected for interviews are members of a labor union and whether there are any collective bargaining agreements to consider.

Conducting Interviews

__  Evaluate whether there are any documents to consider or use in the interviews.

__  Make a general list of issues and questions to ask of witnesses.

__  Conduct interviews individually, not in groups.

__  Remember employee privacy issues.

__  Don’t threaten or badger the person being interviewed.

__  Don’t impulsively search emails, voicemails, lockers, desks, or offices.

__  Allow individuals being interviewed to take breaks.

__  Don’t block movements of person being interviewed.

__  Ask open-ended, non-leading questions.

__  Explain that the discussion will be kept as confidential as possible, but don’t guarantee confidentiality.

__  If the witness doesn’t recall, distinguish between whether he or she doesn’t recall if the conduct or event occurred or whether he or she recalls that it didn’t occur.

__  Avoid questions with conclusory or legal labels.

__  Remind managers and supervisors about prohibitions against retaliation against those who accuse or participate in investigations.

After the Interviews

__  Evaluate whether any new issues have arisen from the interviews requiring additional interviews or further discussion with individuals previously interviewed.

__  If additional witnesses are suggested by those interviewed, and a decision is made not to interview them, document the reason for not conducting those interviews, e.g., irrelevant or cumulative.

__  Analyze witness credibility, i.e., consistency, body language, timing, corroboration, history of truthfulness, other complaints, memory, and common sense.

__  Analyze witness motives.

__  Investigator should reach factual, not legal, conclusions.

__  Investigator should attempt to form a well-reasoned objective conclusion on whether the conduct has or has not occurred that can be supported by substantial evidence.

__  Possible conclusions:

__  Occurred and inappropriate

__  Occurred but not inappropriate

__  Didn’t occur

__  Don’t know whether occurred

__  Consider oral report before written report.

__  Decide whether remedial action is needed.

__  Decide whether progressive discipline is appropriate.

__  Inform the parties of the results of the investigation.

__  Don’t publicize the incident, results of interviews, or outcome of the investigation to anyone who doesn’t have a business need to know.

For an in-depth discussion of workplace investigations, turn to CEB’s Advising California Employers and Employees §§16A.1–16A.17. Get a checklist for interviewing witnesses and a sample memorandum to the complaining employee after the investigation in CEB’s Drafting Employment Documents for California Employers §§10.11-10.12.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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