The Elements of a Workplace Investigation

No one wants to be told that they are the subject of a workplace investigation. However, as nerve-wracking as investigations can be, they are an essential component of managing the operations of a business. While the primary purpose of workplace investigations is to get to the truth, well-run investigations also ensure due process for all parties involved, thereby protecting their rights as employees to the greatest extent possible. Whether you are an employee who is the subject of an investigation or a business that needs to conduct an investigation, a Richmond employment lawyer can assist you.    

What Triggers a Workplace Investigation? 

Before we dive into the elements of workplace investigations, it is helpful to understand the behaviors and circumstances that can trigger an investigation. Generally, workplace investigations fall into two categories: 

1. Internal investigations of individual employees 
2. External investigations of employers by government entities

Internal investigations of individual employees typically involve isolated incidents of employee misconduct, such as disputes between coworkers, excessive absences, allegations of incompetence, or discrimination and harassment. External investigations of employers by government entities typically involve more serious or widespread allegations made by employees, such as discrimination and harassment, retaliation against whistleblowers, and wage and hour violations. Of course, there is often overlap between these two categories of behaviors. For example, both individual employees and employers as a whole can be the subject of investigations for discrimination.

Some of the most common triggers for workplace investigations include: 

• General employee misconduct
• Discrimination
• Claims of hostile work environment
• Sexual harassment
• Retaliation against whistleblowers
• Workplace safety violations
• Wage, hour, and employee classification violations 

Our Richmond employment lawyers represent both employees and employers in all types of investigations.  

Common Components of Workplace Investigations 

Every workplace investigation is different because every employer has its own policies and procedures regarding employee misconduct and the process for investigating and remedying the same. Investigations of employers by government entities tend to be more uniform, as such government agencies are bound by law to conduct their investigations in certain ways. However, there is nonetheless some variation in investigations between government agencies. For example, an investigation of a workplace safety violation by the Occupational Safety and Health Administration (OSHA) would have different elements than an investigation of sexual harassment by the Equal Employment Opportunity Commission (EEOC).  

Regardless of variations between employers and government agencies, most workplace investigations generally involve the following elements: 

Evaluation of Complaint 

Many workplace investigations begin when an employee who believes they are the victim of wrongdoing files a complaint. Most employers have formal processes for filing complaints alleging misconduct that typically involve individuals in the employee’s chain of command (unless the accused is in the employee’s chain of command) and the company’s human resources department. Some employers also have internal ombudsmen who are tasked with resolving disputes between employees. Readers should note that it is essential to follow an employer’s formal process when submitting a complaint, as failure to do so can compromise their position in future litigation. 

Respondent Notification  

If the complaint is in reference to a specific person (known as the “respondent” in most investigations), that person typically will be notified of the allegations against them and that an investigation is being conducted. Keep in mind that an allegation — even where it leads to an investigation — does not mean that the respondent committed the acts alleged or, even if they did, that the acts amount to a breach of company policy or law. In most cases, the respondent will be provided with the specific allegations against them and the company policies their alleged actions implicate, although the complainant’s identity may be withheld. The respondent is then typically given an opportunity to respond to the allegations. If you have been notified that you are under investigation, you may be entitled to be represented by a Richmond employment lawyer. 

Collection of Evidence 

The next phase of the investigatory process is to gather any and all available evidence that may be relevant to the allegations made in the complaint. Such evidence may include: 

• Witness statements from coworkers who have knowledge of the events giving rise to the investigation 
• Witness statements from any non-employees or other third parties who may have knowledge
• Physical mail addressed to a party at their employer’s address
• Photographic or video evidence
• Phone logs and voicemails 
• Emails and text messages
• Receipts and mileage logs 
• Browser history 
• HR-related documentation, such as employment contracts, performance improvement plans, and prior disciplinary actions

In short, relevant evidence can include any information relevant to the parties’ employment or communications made using company-issued devices.

Evaluation of Evidence 

The investigator will then evaluate the evidence he or she collected to determine (1) the full, fact-based narrative of what happened and (b) whether the record supports a finding that a company policy or other law or regulation was violated. The evaluator will typically be looking for common themes throughout the evidence, paying close attention to details that either confirm or refute particular statements or other evidence. While no one is totally free from bias, reputable investigators strive to eliminate all bias and prejudicial thinking when weighing the evidence. 

Report of Results 

The final stage of the investigatory process is the communication of results to the appropriate parties. This often takes the form of a formal written report that provides a detailed record of the allegations, the evidence, and the investigator’s conclusions based on that evidence. In some cases, the investigator may also recommend a particular course of action. In others, they may merely provide their report to the appropriate party who will then decide on a course of action based on the report. 

Protect Your Interests in an Investigation With Help From a Richmond Employment Lawyer 

If you have been notified that you are the subject of an investigation or need to conduct an investigation into alleged misconduct, you should consider speaking to an attorney with experience handling workplace investigations. To get started, please contact a Richmond employment lawyer at Pierce / Jewett by calling 804-502-2320 or using our online contact form.