Workplace Investigations
4
Standards
Prompt, thorough, impartial, documented
6
Steps
Receive through follow-up
Weingarten
Right
Union representation in interviews
a real flowchart, not a numbered list
The Investigation Flow
Each diamond is a decision. Each rectangle is an action. Branching paths show what the investigator does when the answer is yes versus no.
how to read this
- › Diamonds are decision points. Rectangles are actions. Ovals are start/end.
- › The right-hand branches are the exam-favorite forks — interim measures and Weingarten rights.
- › Steps 5 and 6 run in parallel after the determination: documenting goes one way, follow-up actions go the other.
The Four Standards
Prompt
within days, not weeks
Thorough
all witnesses, all docs
Impartial
no pre-judging
Documented
specific and dated
Exam Traps
Confidentiality cannot be promised
Investigators say "to the extent possible." Witness identities may be revealed. Blanket confidentiality requirements have been ruled to violate Section 7 (Banner Estrella).
Standard is preponderance, not "beyond reasonable doubt"
More likely than not. Different from criminal standard. The exam tests this.
Weingarten = unionized workplaces (current rule)
NLRB has flip-flopped on non-union coverage. As of 2026, Weingarten applies in unionized workplaces only. Verify before exam day.
Delay alone can establish liability
Even a thorough investigation can fail the prompt standard. Start within days of the complaint, not weeks.
Cannot promise confidentiality
Investigators say "to the extent possible." Subpoenas, EEOC charges, and litigation can override. Over-promising creates downstream problems.
Preponderance, not proof
More likely than not is the bar. Investigators are not prosecutors. Good-faith judgment based on evidence is the standard.
Note date, parties, allegations. Open the case file.
Identify witnesses, documents, scope. Decide order of interviews.
Complainant first. Then alleged respondent. Then witnesses. Document each.
Apply preponderance of evidence. More likely than not.
Written report with evidence cited. Specifics, dates, sources.
Communicate outcome. Implement corrective action. Monitor for retaliation.
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