Workplace Investigations
6
Process Steps
Plan gather interview document conclude act
1
Critical Rule
Cannot promise complete confidentiality
0
Complaints to Ignore
Even anonymous complaints require investigation
The Investigation Process
six steps, none are optionalConfidentiality Limitations
The correct language is 'as confidential as possible' because information may need to be shared
Correct Approach
"We will keep this as confidential as possible. Some information may need to be shared with those involved in the investigation or those who need to take action."
Incorrect Approach
"This will stay completely between us." This creates a promise you cannot keep and exposes the organization to liability if information must be disclosed later.
Retaliation Prevention
Retaliation claims are now more common than the underlying discrimination claims. HR must proactively monitor for adverse actions against complainants, witnesses, and anyone who participates in an investigation.
Termination or demotion after complaint
Presumed retaliatory unless clearly documented otherwise
Schedule changes, exclusion from meetings
Subtle retaliation is still retaliation under the law
Negative performance review timing
A negative review shortly after a complaint raises red flags
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Practice NowExam Traps
Cannot Promise Complete Confidentiality
The correct language is "as confidential as possible." Information may need to be shared with investigators, legal counsel, witnesses, or management to properly resolve the issue. Promising full confidentiality creates liability.
Even Anonymous Complaints Require Investigation
There is no threshold of credibility or formality required to trigger an investigation. If HR receives a complaint through any channel, including anonymous tips, the organization has a duty to investigate. Ignoring any complaint creates liability.
Failing to Investigate Creates Liability
An organization that knew or should have known about misconduct and failed to investigate can be held liable. The act of investigating, even if the complaint is unfounded, demonstrates good faith and due diligence.
Must Act Promptly
Delayed investigations weaken evidence, erode trust, and increase legal exposure. SHRM expects HR to begin an investigation promptly after receiving a complaint. "We were busy" is never an acceptable reason for delay.
Every Single Complaint
Formal, informal, written, verbal, anonymous. Every complaint triggers a duty to investigate. No exceptions.
As Confidential as Possible
Never promise complete confidentiality. Information may need to be shared to conduct a proper investigation.
Someone reports a problem. It does not matter if the call comes from a named witness or an anonymous tip. The detective does not get to decide some calls are not worth investigating.
Collect documents, emails, records, and any physical evidence. Interview witnesses separately. Ask open-ended questions. Let people talk. Write everything down.
A detective cannot promise witnesses that their statements will stay secret forever. The same applies to workplace investigations. You can promise discretion, but not silence. Information flows where the investigation requires it.
Reach a conclusion based on the evidence, not on gut feeling. Document findings. Take appropriate corrective action. Communicate outcomes to relevant parties. Follow up to ensure the issue does not recur.
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