Founder and Managing Partner
Attorney of Counsel
Decisions to discipline and/or terminate employees are serious and often difficult judgment calls that employers regularly face. Because these actions can profoundly affect employee morale and even expose employers to legal claims, it is important for employers to carefully approach these decisions through a fair and credible process. One step in the process that is often neglected is the thorough investigation of the facts leading to the employment action. In advising clients on their termination or discipline decisions, we sometimes find that the employer has already made a factual determination of the occurrences underlying the decision, however, when we scratch the surface, these factual determinations have not been sufficiently vetted or proven. For example, if a complaint is made against an employee by a co-worker, an employer may have gathered the facts from the complaining party, and reached the conclusion that the conduct did in fact occur without questioning the accused or other witnesses. If the employer’s decision is later challenged or questioned after-the-fact, the employer’s investigation into the issue will be scrutinized, and the failure to further inquire into the accuracy and correctness of the complaint will undermine the decision. As such, it is very important that, even in situations where the initial facts appear to be credible and the resulting decision seems obvious, the employer provide the accused with the opportunity to respond to the substance of the accusations, and in situations in which facts are disputed (or disputes are likely), other witnesses should be questioned. Things are usually not as simple and clear as they may seem from just hearing one side of the story.
In situations that are especially sensitive, serious, or legally risky, employers should consider whether to have the investigation conducted by an outside third party. Even where the investigation is relatively simple and short (such as where the facts are simple, undisputed, and/or there are not many witnesses), employers should still document the investigation.
Important steps in the investigation process include:
- Planning the Investigation—Determine: what policies/guidelines apply to the situation, how have similar incidents been handled in the past, who should conduct the investigation, who should be interviewed and in what order, what questions will be asked, and what interim action (such as a suspension) is appropriate.
- Gathering Relevant Information—Interview witnesses, compile and analyze documents, review other relevant information (including video footage, photos, etc.).
- Document, Document, Document—Prepare notes/summaries of witness interviews, and maintain records of information evaluated in the course of the investigation.
- Evaluate the Information—You are required to make a good faith determination based on the facts obtained in the investigation. Therefore, in a close case where facts are in dispute, you are required to make a reasonable determination based on the available information and the credibility of witnesses, documents or other information evaluated.
- Prepare an Investigation Report—The breadth and complexity of the report will depend on the investigation, but every report should set forth the findings of the investigation, describes the scope of the investigation and relevant facts obtained, and explains how the facts led to the findings.
- Take Action Based on the Findings—The findings of the investigation should lead to action that is reasonably calculated to remedy the conduct investigated (or no action, if appropriate). Potential remedial actions could include personnel actions (such as counseling, discipline or termination), training, clarification or change in policies, or changes in operational processes. The complaining or reporting party should be apprised of the conclusion of the investigation and remedial action (to the extent possible while maintaining the privacy interests of others).
Although employers may be eager to expediently address and resolve workplace issues and misconduct, they should remember that following a proper investigation process can save them from potential legal liability from discrimination, wrongful termination, retaliation or other employee claims. We have seen too often the fallout that can occur when a plaintiff’s attorney cross-examines the employer, and exposes that the employer did not rely on a thorough investigation of the facts, but rather, rushed into a decision based on incomplete information. Employers may also want to enlist the assistance of counsel for advice regarding the implementation, documentation and evaluation of an investigation.