Workplace investigations are critical for addressing issues such as discrimination, harassment, retaliation, and any other policy violations. However, mishandling investigations can lead organizations to legal and litigation exposure, reputational risk and damaged reputations, and loss of employee and customer trust. Below are the top ten most significant mistakes people make during workplace investigations:
1. Lack of Training
Adequate training and expertise in conducting workplace investigations is imperative. The single most fatal mistake is not conducting them efficiently, which is a skill that requires development. When an untrained person conducts a workplace investigation, they can miss important steps and subject the organization to risks.
Solution: Ensure that all workplace investigators are adequately trained initially and receive ongoing training and education on best practices and emerging issues in federal and state laws, as well as the organization's policies and procedures.
2. Lack of Preparation
Failing to prepare an investigation plan early on and adequately can lead to incomplete findings and confusion. Without a clear plan, investigators may miss key witnesses, fail to gather necessary evidence, or deviate from legal and procedural requirements.
Solution: Develop a detailed plan, outline objectives, and familiarize yourself with company policies, laws, and the specifics of the complaint.
3. Lack of Objectivity or Bias
If the investigator has biases, they may interpret evidence in a way that aligns with their biases, beliefs, and judgments rather than objectively and neutrally examining the facts. This can lead to a flawed investigation and biased conclusions, which undermine its credibility. Bias can also lead to unfair treatment and legal repercussions.
Solution: Train investigators on conscious and unconscious bias. Ensure that you are assigning impartial investigators to ensure neutrality.
4. Conflict of Interest
A conflict of interest is when the investigator has a conflict with a party to the complaint, a decision maker, or an administrator. The conflict can be a family or friendship relationship with one of the parties involved in the case.
Conflict of interest refers to a clash that can occur due to overlapping interests between parties. Whether it’s a real or perceived conflict of interest, it can negatively impact the investigation results and give room for questions about the neutrality and soundness of the results.
Solution: When assigning an investigator, ask if the investigator has a conflict of interest. If you engage a third-party investigator, require that the investigator conduct conflicts of interest checks. If you find a conflict of interest with an investigator, assign another investigator.
5. Failure to Protect Confidentiality
Breaching confidentiality and unnecessarily disclosing information can violate company policies and laws. Moreover, it may create mistrust, lead to retaliation, or compromise the integrity of the investigation.
Solution: Share information with people strictly on a need-to-know basis with individuals who need to know. A need-to-know person is someone who can help you resolve the complaint. Ask participants to avoid discussing the allegations or issues presented during the investigation.
6. Not Documenting Properly
Only complete or accurate documentation can ensure findings and strengthen the organization's position in legal disputes.
Solution: Maintain detailed, contemporaneous records of all interviews, evidence, and findings.
7. Delaying the Investigation
Postponing an investigation or delaying any aspect of the process can lead to retaliation, witness tampering, witnesses failing to cooperate, loss of evidence, and additional workplace tensions.
Solution: Initiate the investigation promptly and continue to meet timelines. Immediately address concerns and mitigate any apparent risks.
8. Ignoring Relevant Evidence
Overlooking or dismissing intentional or accidental evidence can lead to incorrect conclusions and liability.
Solution: Collect and review all relevant documents, electronic data, and witness statements, ensuring thoroughness.
9. Poor Interview Techniques
Starting with developing rapport would lead to positive solutions. Investigators must refrain from using leading questions or yes/no questions and from using an overly aggressive tone. Failing to capture complete statements or accurate information can harm the investigation.
Solution: Begin with open-ended questions and ask specific questions about the allegations. Refrain from asking yes/no questions. Use active listening techniques and repeat to the interviewee what you heard. Develop rapport by asking opening questions to get to know the interviewee. Create a comfortable and neutral environment. Explain the process and what will happen during the investigation interview.
10. Failing to Follow Policies or Legal Standards
Not following company policies, procedures, and applicable laws when investigating can invalidate the investigation and expose the organization to litigation.
Solution: Review company policies and procedures. Align the investigation process with company policies and comply. Review and understand civil rights and employment laws, rules, and regulations.
Conclusion
Avoiding these workplace investigations mistakes will ensure more legally sound workplace investigations. Conducting workplace investigations effectively requires an adherence to policies and practices as well as impartiality, preparation, and utilization of best practices. Avoiding these frequently made mistakes, investigators can mitigate legal risks, foster trust, maintain compliance, and help create a safe, welcoming, and inclusive workplace environment for all members.
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