Magnifying glass on a computer to symbolize that many workplace investigations occur online or in electronic files — Photo by Agence Olloweb on Unsplash

One of an employer’s worst nightmares is having a workplace incident. And the worst workplace incidents are the ones where the employer has no idea what to do. Fortunately, there are some things that employers can do to avoid this situation. Workplace investigations can be broken down into 3 different parts: 1) preparing for a problem before it occurs; 2) conducting the investigation; and 3) making a decision and following through.

Preparation is Key:

Many incidents at work could have been prevented with better preparation and communication with employees, and a problem that is prevented is one less headache for you as an employer.

You Need to Communicate Expectations with Your Employees

It is imperative that employees know the rules that they are required to follow. An employee that does not know the rules is going to feel like they are being unfairly treated when they are eventually disciplined for a rule that they did not know or when they feel that a rule was inconsistently enforced. It is a bit like this scene from Office Space when Joanna’s boss counsels her about how much “flair” she is wearing at her job at the restaurant. In her case, the rules said one thing (you need 15 pieces of flair), but she was counseled for only doing the minimum (there was an unwritten rule).

You Need to Keep Good Records

In the event that a problem arises, even with adequate communication and training, you need to document the various problems that arise with an employee so that you can take appropriate actions against an employee. When you conduct workplace investigations, it matters whether an individual has committed a similar offense prior to the one that they are being investigated for- and documentation is key. It matters for determining what punishment the employee should receive and for determining whether they committed the offense, the frequency of offenses, and types of offenses committed. Every single instance of an employee not obeying the rules must be documented.

You Need to Train Your Supervisors

Supervisors need to know how to enforce the rules of the workplace. They cannot merely have a familiarity with the rules. They need to know how to address a variety of scenarios in the workplace from sexual harassment, workplace performance problems, and any other major, common issues that the worker may face meaning they need to know what exact steps to take in the event something occurs. In the event supervisors are not certain of their steps, they should know who to contact (e.g. their supervisor or company legal counsel) to prevent any missteps for the company.

You’ve Got a Problem- Now what?

Unfortunately, not all problems will be prevented even with adequate preparation. Some of these incidents (like absences, showing up late, failing to complete paperwork) are routine and will not require a workplace investigation. However, problems that are fact specific and require a tailored response will. These sorts of incidents are the ones that keep HR up at night. Let’s start at the beginning. Something’s happened. You have a problem. What should you do?

Respond in a Timely Manner

Once you hear of an incident, it is your responsibility to take steps to mitigate the situation in a timely manner. Employee safety is an imminent concern- if safety is in question, you have to deescalate the situation ASAP. For example, if two employees engage in a verbal altercation then you may need to suspend an employee while you conduct the workplace investigation. The same thing may be true if there is a workplace accident that you need to investigate. You also need to consider who all needs to be involved in conducting an investigation. Some investigations can be conducted with inside counsel/HR, but outside counsel is preferred when litigation is likely. If it is the CEO or owner, then you may also need outside counsel that you do not normally use. Any investigator should be independent to avoid any semblance of bias or undue influence/interference with the investigation.

Gather Information

The next step is to interview the various people that may have relevant information about the incident.

The first person to interview is the complainant. There are a number of questions that you will need to ask the complainant. The goal of this interview is to gather as much information as possible. You want to know who committed the action against them, where did it take place (Was it in more than one location? Away from work? Online?), when it did it take place (Was it more than 1 time?), how did it take place (What was the context?), and what exactly happened. You want to know whether there are any other people that may have other information about the incident, did anyone else complain about the conduct that he or she is accusing another employee of, and whether there are any notes or other documents that they have that may be relevant (This may be past accusations, discipline notices, and other documents in the employee’s folder) .

The next person to interview is the person that the complainant is making accusations against (the offending employee). You will let them know what they are being questioned about and ask what their response is to the allegations. If an employee admits that they committed the conduct, then you will ask questions around the behavior to determine any appropriate punishment or reason that shows that they did not violate company policy. If the employee says that the allegations against them are false, then you will ask why the complainant may lie or be incorrect. You will also ask if they have any other relevant information, if there is anyone else that may have relevant information, and if they have any documents, text messages, or other physical evidence about the incident.

Finally, you will ask any additional witnesses about the information that they may have about the allegations. You will ask the witnesses what they may have seen or heard about the incident and when the incident(s) may have occurred. You may ask what the complainant, other witnesses, or the offending employee told them about the incident and when they gave them this information. You will also ask whether they have any relevant information or know anyone that may have relevant information.

Wrapping up the Investigation

After you have interviewed all the witnesses, the next step is assessing the credibility of your witnesses and any evidence and taking action.

The EEOC has some great information on how to determine whether a witness is reliable:

Inherent plausibility: Is the testimony believable on its face? Does it make sense?
Demeanor: Did the person seem to be telling the truth or lying?
Motive to falsify: Did the person have a reason to lie?
Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
Past record: Did the alleged harasser have a history of similar behavior in the past?

After each witness interview you need to determine whether a witness is believable/credible. Can you believe what they are telling you? Is it physically or otherwise impossible for what they said to have occurred? You also need to consider whether the employee’s demeanor makes it seem like they are telling the truth. Were they able to look in your eyes or were they being shifty in their answers or not being direct in answering the question that you asked? You also want to determine whether an employee has a reason to lie. An employee may have been recently disciplined by a supervisor or given a last chance warning that they would be fired for another performance issue. Some employees may retaliate against a supervisor or competitor in the workplace. Essentially, you have to examine all the factors that could determine whether or not a witness is telling the truth.

After interviewing the witnesses, you will assess the evidence as a whole to determine whether the individual(s) violated company policy. This is a fact specific determination that requires examining your company policy and the evidence to determine whether the employee committed a violation.

Determine the Appropriate Action

Once you have made a determination based on the evidence, then you need to decide how you respond to the employee’s offense or conduct. You need to consider whether you will absolve an employee and determine that they did not violate company policy or if you will discipline or terminate the employee. It is important to review whether there are any circumstances that indicate that the punishment should be reduced. Finally, you should document any actions that you take and follow-up with the employee that made the accusations to ensure that the problem is not recurring.

Conclusion

Workplace investigations are an important part of any business. By taking these simple steps you can conduct better investigations and follow-up on any issues that arise so that you can prevent similar problems in the future.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Disciplining or firing an employee sucks! However, with a little work companies can make decisions that are defensible, easier, and not a surprise for the person that will be fired.

Here are a few simple questions that companies can ask before they discipline or fire an employee:

Was the Employee Aware of the Company Policy that They Violated?

Every company needs a set of rules in the workplace. An employee handbook tells employees the rules that they need to follow when they call in sick, report a complaint, and do many of the most important day-to-day tasks. It also lays out the relevant punishments for various violations. Without a handbook the employee may not be aware that they violated a rule. Employees should sign an acknowledgement that they received the handbook and companies should give employees a copy of the handbook.

Supervisors need to have an even greater knowledge of the rules than employees to ensure that they treat employees consistently. Supervisors are consistent when they are familiar with these policies and consult them before the supervisor applies any discipline or fires an employee. When a manager decides what the discipline should be “on the fly” he or she risks treating employees differently, which may eventually lead to a discrimination lawsuit.

How Many Times Has the Employee Violated the Policy and Other Policies?

Is this an employee that has had a number of problems or is this the first time that the employee has had a problem? How many times has the employee violated this particular policy? Of course, if the employee has worked at the same company for 20 years, then the supervisor does not need to think about every single time that the employee was late.

If it is the first time that an employee has violated a rule, then many companies meet with the employee to help them. Companies often explain the rules to the employee again and tell employees what they need to do to improve. By working with the employee companies encourage employee growth and, hopefully, the issue does not become something that will continue to be a problem later on.

Did the Company Apply the Progressive Discipline Policy?

One of the most important steps in disciplining or firing an employee is ensuring that employees are treated consistently. A progressive discipline policy removes any subjectivity in determining an employee’s punishment and ensures consistent treatment. Some issues are better suited than others to be governed under a progressive discipline policy. Attendance issues are among the easiest issues. Sexual harassment and similar issues that are very fact specific cannot be treated under a progressive discipline policy. They require too much investigation and individual treatment to be governed by a progressive discipline policy.

Has the Company Documented the Violation and Prior Violations? Was the Corrective Action Documented?

What sort of documentation have you made for any past incidents that occurred? All companies, no matter how small, benefit from a discipline form to document any violations by employees. The form should also have a place for the company to describe any corrective action that it or the employee took. Businesses do this to document their actions and create a record in the event that an employee sues.

What Level of Discipline Does the Employer’s Policy Require?

Supervisors and HR managers can clearly understand what discipline applies in situations where the policy is rather straightforward. For example, failing to meet the required sales quota is usually a pretty easy case and the level of discipline that should be applied is rather obvious especially when every other sales person is meeting their quota.

Many companies will separate offenses into 2 different classes. Certain offenses result in automatic suspension pending termination. These offenses may include using illicit drugs or being under the influence of drugs at work, stealing, or fighting. Lesser offenses result in a smaller a form of discipline such as a counseling or a written warning.

What Discipline Did Other Employees that Have Violated the Policy Receive?

Companies try to ensure that they treat their employees equally. However, sometimes companies inadvertently treat some employees better than others especially when the policy is unclear or unwritten. Companies that treat employees differently encourage discrimination lawsuits against them.

Is There Any Reason to Reduce the Punishment? Are There Mitigating Circumstances?

What were the circumstances under which the employee committed the violation? There are a number of reasons that could reduce or completely eliminate the need to punish an employee. An employee may have needed to leave work early due to a family emergency. A mechanical error could have made it impossible for the employee to properly follow the lockout tagout procedures to safely use a dangerous machine.

Conclusion

Disciplining or firing an employee is not easy, but companies avoid a lot of trouble when they follow some simple steps. Employees generally want to succeed at work. Companies that inform employees of how to improve and what they are doing well can avoid many performance issues. Well-managed companies help employees grow. Poorly managed companies never address employee performance issues and leave employees clueless about how well they are doing their job. Which type of supervisor or company do you want to be?

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Category: Discipline

How to Conduct Effective Workplace Investigations

Preparation is Key:

You Need to Communicate Expectations with Your Employees

You Need to Keep Good Records

You Need to Train Your Supervisors

You’ve Got a Problem- Now what?

Respond in a Timely Manner

Gather Information

Wrapping up the Investigation

Determine the Appropriate Action

Conclusion

Questions to Ask Before Disciplining or Firing an Employee

Was the Employee Aware of the Company Policy that They Violated?

How Many Times Has the Employee Violated the Policy and Other Policies?

Did the Company Apply the Progressive Discipline Policy?

Has the Company Documented the Violation and Prior Violations? Was the Corrective Action Documented?

What Level of Discipline Does the Employer’s Policy Require?

What Discipline Did Other Employees that Have Violated the Policy Receive?

Is There Any Reason to Reduce the Punishment? Are There Mitigating Circumstances?

Conclusion