How to Conduct an HR Investigation: 8 Best Practices for Compliance
In today's rapidly evolving corporate landscape, HR professionals are unwittingly thrust into the role of investigators more often than ever before. In a 2021 poll, 70% of employers said they’d seen an increase in workplace complaints, so it’s crucial to have a policy in place for how to handle those cases—it’s not a matter of if but when you’ll need to conduct an HR investigation.
Because an HR investigation can delve into sensitive territory, your investigation process must strictly adhere to relevant laws and statutes to safeguard your company and its employees. Ignoring the need for proper HR investigations jeopardizes not only the well-being of your employees but also the reputation and financial stability of your company. The consequences can be detrimental, leading to decreased employee morale, increased turnover rates, and potential legal liabilities and costs.
To help you navigate the complexities and potential pitfalls of HR investigations, we’ve put together guidelines from HR expert Cassie Whitlock, BambooHR’s HR Director, on how your team can conduct a proper HR investigation that also safeguards the interests of your company and the employees.
When Does HR Have to Investigate a Complaint?
Many organizations choose to investigate every complaint they receive. Your organization is legally obligated to investigate harassment, discrimination, retaliation, and safety complaints.
Federal laws governing these complaints include:
- The Age Discrimination in Employment Act (ADEA)
- The Americans with Disabilities Act (ADA)
- The Occupational Safety and Health Act (OSHA)
- Title VII of the Civil Rights Act of 1964 (Title VII)
- The Sarbanes-Oxley Act (SOX)
- State and local nondiscrimination laws
Because of this, we recommend at least discussing every complaint with your legal team to be sure you’re taking the right steps for both your organization and the employees involved.
“You are working with humans. People have baggage—and you need to be sensitive to that, so you don’t unintentionally traumatize someone in the process of correcting a wrong in the workplace.”
–Cassie Whitlock, HR Director | BambooHR
How Long Does HR Have to Investigate a Complaint?
The Equal Employment Opportunity Commission (EEOC) doesn’t mandate a set timeline for an investigation. However, when you receive a complaint, the EEOC clearly states that you should act immediately.
Your HR investigation timeline will vary based on the complaint, but addressing policy violations should be a top priority so you can protect your company and employees and keep your business running smoothly.
Don’t expect to finish everything in one day, but try to wrap up investigations as quickly as possible without sacrificing the integrity of your investigation.
As Cassie points out, “It feels like a lot of work, and it is a lot of work, but I have found that taking the time to do it right is always worth it. I’m not talking about giving yourself weeks to do this. Usually, an investigation can be completed in a couple of days.”
How to Conduct an HR Investigation: 8 Best Practices
1. Develop and Communicate Workplace Policies
Start by having a set of ground rules to follow in your workplace, including anti-discrimination, anti-harassment, and company policies. These rules help you establish your basis for any employment action.
But just having policies isn’t enough.
You need to establish the consequences of breaking those policies and how you will conduct an HR investigation to determine whether a policy was broken or not.
Your protocol should include:
- The rules of conduct
- How employees can report complaints
- What happens when HR receives a complaint
- How HR handles a broken policy
These policies will provide a playbook you can rely on when needed—and protect the company and employees' best interests alike.
In particular, policies will ensure you conduct HR investigations fairly. Cassie advises, “You need to build an outline of what an HR investigation looks like. If you do this, then your investigations are more likely to go well; you won’t skip an important step, and you’ll make sure you discover what you need to discover.”
Compliant policies will also prevent you from acting based on emotions rather than evidence.
“Too many times, someone brings forward a concern and the person listening is stunned,” says Cassie. “If you don’t have a protocol, it can be difficult to remain deliberate and neutral. Don’t go directly to the person accused. Follow protocol. It’s not that people are trying to lie and get people in trouble but that you need to actually investigate and follow a process.”
2. After a Complaint Is Filed, Take Any Necessary Immediate Action
We’d caution against immediately terminating or disciplining an employee without first gathering an appropriate amount of evidence. But there are instances where you will need to take action as soon as you receive a complaint.
For example, you may need to protect the accuser or take other actions to keep the situation from spiraling out of control. You may need to send someone home for the day, temporarily suspend an employee, or adjust schedules.
At the same time, it’s important not to take any actions that could be perceived as retaliation or as an official, final decision.
3. Decide Who Will Investigate
Most companies use HR, legal counsel, or a third-party investigator to conduct HR investigations.
For example, in her role as Director of HR, Cassie conducts HR investigations at BambooHR. She also involves her supervisor and our legal counsel, but someone else will be assigned to the investigation in a few cases:
- If she has a personal relationship with someone in the investigation
- If it’s outside her abilities to investigate
- If other circumstances are present that would make her unable to properly conduct the investigation
When choosing potential investigators, we recommend vetting individuals who have:
- Proper training: HR’s specialized job training makes them the most qualified to perform a workplace investigation. As such, the HR team member investigating should be familiar with your state’s employment laws and have a relationship with legal counsel if they need more information on employment laws. It could also be helpful to have your HR team involved in additional training on investigations so they’re prepared when a situation arises.
- Impartiality: Whoever is investigating can’t have a personal relationship with anyone involved in the investigation, and the investigator’s position at the company can’t be directly affected by the investigation’s outcome. It is too difficult for someone to remain impartial if they have a stake in the outcome.
- Attention to Detail: Investigations can involve numerous parts that you’ll need to piece together to understand what happened. Interviews, emails, documents, etc., may all come into play as you investigate.
- Sensitivity: “You are working with humans,” says Cassie. “People have baggage, stuff, issues, and you need to be sensitive to that, so you don’t unintentionally traumatize someone in the process of correcting a wrong in the workplace.”
- Trustworthiness: Whoever investigates needs to be someone employees feel comfortable being open and honest with and someone executives can trust to make the right decision.
If someone at your company can't meet these requirements for an investigation, consider involving a third-party investigator. They can remain objective and will be properly trained for the HR investigation process.
4. Plan the HR Investigation
Before diving in, consider the information you already had presented to you along with the complaint, such as emails or the complaining employee’s account of what happened. Then consider what other information you will need to make a decision and develop a plan to gather it. The plan might be simple or require extra assistance, a specific timeline, or gaining access to stored information.
First, decide who you will question. Your investigation should be thorough enough to provide the information you need to make a decision, but you shouldn’t feel the need to interview everyone at your organization. Cassie warns that you don’t want your investigation to be so far-reaching that it damages productivity, impacts morale, or spreads more information than it gathers.
Next, make a plan for what you'll ask witnesses. Once you’ve chosen who to involve, don’t walk into those interviews empty-handed or as though they are all the same. Be prepared with questions that will help you get the information you need but are also tailored to respect the feelings, relationships, and access permissions of the interviewee—i.e., what they need to know versus what they are allowed to know.
Finally, gather any necessary documents and records. Evidence you might consider requesting includes:
- Written warnings
- Supervisor’s reviews
- Personal files
- Proof that company policies were communicated to the accused employee
This is why it’s so important to have organized and accurate employee records at all times—a central record is always useful, but it becomes vital in these kinds of workplace issues.
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5. Collect Data
A lot of data collection may come in the form of interviews. With each HR investigation witness you interview, your first steps should be as follows:
- Tell them their responses are confidential.
- Request they keep the interview confidential.
- Inform them of their rights.
Cassie advises, “As part of protocol, I have a sheet with a script written out so I can clearly state what the employee’s legal rights are. Alternatively, you can print it out and hand it over for the employee to read themselves. You don’t want to make it sound intimidating, or you might make the employee nervous and damage the employee experience.”
Drafting the Interview Script
You should draft this statement with advice from legal counsel to ensure you provide correct information and protect both the employee and your organization.
At the same time, be aware that complicated legal language might be hard for your HR investigation witness to understand, which might make them reluctant to speak openly with you. Keep the statement language straightforward.
As you conduct interviews, try to remain as neutral as possible, avoid leading questions, and only share necessary information with the people you interview.
Be sure to take thorough notes—these will be essential when coming to a conclusion and writing a final report. Consider taking a few minutes between each interview to review your notes, collect your thoughts, and record additional impressions that may help you conclude.
6. Analyze the Data and Make a Decision
Now that you have a desk full of interview notes, emails, complaints, and other evidence, you’re ready to evaluate the information you’ve collected. You should consider all sides of the situation as well as potential legal risks (making this another great time to involve your legal team), not to mention the effects your decision may have on the company and your employees.
» Learn More: How to Fire an Employee the Right Way
7. Create a Report
Compile all your information into a summary report. Depending on your organization, you may need to take your report and final recommendation—whether it’s a written warning, probation, termination, or anything else—to a specific group for a final decision. For example:
- Your executive team
- Your legal counsel
- An impartial third-party mediator or HR investigation expert
In your report, be sure to include a list of pros and cons for the business, discuss potential legal risks, and detail why you think this is the correct course of action.
After you and the team have come to a final conclusion, include that decision in the report and follow through with any disciplinary action.
8. Conclude the Investigation
While it may not be an official step in your HR investigation protocol, it’s a good idea to follow up with whoever submitted the complaint to be sure they are comfortable with the investigation’s conclusion.
And after an investigation, circle back to the HR investigation process and look for gaps you can fill or ways to better train employees on policies so you may have fewer investigations in the future.
11 HR Investigation Questions for Witnesses
The questions you ask employees involved in an HR investigation will vary based on what violations you are investigating and who you are questioning.
The Society for HR Management (SHRM) suggests a few general questions that apply to most situations:
- What exactly happened?
- When did the incident occur, or is it ongoing?
- Where did the incident occur?
- How did you react?
- Did you ever indicate that you were offended or displeased by the act?
- Who else may have seen or heard the incident?
- Have you discussed the incident with anyone?
- How has the behavior affected you and your job?
- Is there anyone else who may have relevant information?
- Do you have any other relevant information?
- What action do you want the company to take?
Cassie advises investigators to keep in mind that “workplace investigations are uncomfortable for everyone, including the people who initiated it by bringing forward a concern. And they are hard for people doing the investigation and being asked to participate.”
Expert Tips for Asking HR Investigation Questions
- Encourage employees to open up by asking open-ended questions that allow them to share their full story.
- Ask clarifying questions so you don’t misunderstand any part of a witness’s testimony.
- Avoid leading questions.
- Look for not only information they give but also information they avoid giving.
- Take careful notes.
- Remain calm and avoid accusations, veiled (or open) threats, implied rewards (i.e., quid pro quo), or any other form of intimidation or coercion.
What Are Employees' Rights During an HR Investigation?
For employees in the US, Miranda Rights don’t extend to workplace investigation. If someone refuses to participate in an investigation, you may have grounds for discipline for insubordination, including termination.
However, if an employee does refuse to participate, you may want to give them at least a day to change their mind or speak with a lawyer, especially if they are accused of an offense that could have actual legal consequences.
Some employees may wish to have a friend or lawyer present when they are being questioned, and if this is allowed, it should be outlined in the employee handbook. Employees in a labor union have a protected right to have someone else there during an investigative interview.
As you lead any HR investigation, you should be on the lookout for retaliation. It is against the law for employers or other employees to retaliate against employees who submit a complaint. If the employee acted in good faith with their complaint, your organization must respond in good faith.
Retaliation can come in many forms, including:
- Scheduling someone’s shifts during less desirable times
- Overlooking them for a promotion
- A hostile work environment where the employee feels unwelcome or threatened due to remarks or behavior by coworkers
This kind of behavior can quickly get your company in hot water. The EEOC reports that more than half of discrimination lawsuits contain a retaliation charge.
Next Steps: Create a Healthy, Safe, and Thriving Workplace
As we suggested, be sure to involve your legal team from the beginning. They can help you educate employees about their rights during an HR investigation and avoid unnecessary complications.
More than anything else, use your values and culture to drive your HR policies investigation efforts. Ask yourself, “What kind of workplace do we want to build for our people? What kind of business do we want to be?” Thinking more broadly about your purpose will help you stay anchored to your values during more challenging moments and also maintain a healthier organization overall.
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