How to Conduct an HR Investigation
You don’t work at a detective agency; you’re an HR pro (unless you’re an HR pro at a detective agency). Even so, when a complaint comes in, it often requires you to put on your Sherlock Holmes hat and perform an HR investigation. While it might sound fun to “solve the mystery” of what happened in your workplace, it’s a serious matter.
We’ll offer you the best advice we have so you can learn how to conduct an HR investigation properly, but you should always consult your organization’s legal counsel. HR investigations can be a very sensitive matter, so you’ll want to be sure you are following all relevant laws and protecting your company and employees.
HR Investigation Protocol
You need to start by having a set of ground rules to follow in your workplace that includes anti-discrimination rules, anti-harassment rules, and company policies. These rules help you establish your basis for any employment action.
But just having policies isn’t enough. You should also establish what the consequences of breaking those policies are and how you will conduct an HR investigation when you need to determine whether a policy was broken or not.
Having an HR investigation protocol will help make sure you are conducting HR investigations fairly. Cassie Whitlock, director of HR at BambooHR 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.”
An HR investigation protocol also prevents 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.”
Your protocol should include what the rules are, how complaints are reported, what happens when you receive a complaint, how a broken policy is handled, and everything in between. But, it’s the in-between parts that can get the most confusing, so keep reading for advice on how to conduct an investigation step-by-step.
HR Investigation Process
A complaint just came in through your company’s reporting system and, being the cautious and thorough HR professional that you are, you’ve decided it warrants investigation. What now?
1. 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 action 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 to be careful not to take any actions that could be perceived as retaliation or as an official, final decision.
2. Decide who will investigate.
Most companies use HR, legal counsel, or a third-party investigator to conduct HR investigations. At BambooHR, we usually have the director of HR conduct investigations and involve her supervisor and our legal counsel, but this can change if she has a personal relationship with someone in the investigation, if the investigation is outside her abilities to investigate, or if other circumstances are present that would make her unable.
There are a few key traits and responsibilities you need to keep in mind when deciding who will investigate:
Because of HR’s specialized job training, they are often the most qualified to perform a workplace investigation. They should be familiar with employment laws for your state and should 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 are prepared when a situation arises.
Whoever is investigating cannot have a personal relationship with anyone involved in the investigation, and the investigator’s position at the company cannot 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 a lot of parts that you will need to piece together to understand what happened. Interviews, emails, documents, etc. may all come in to play as you perform your investigation.
“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.”
Whoever investigates will need to be someone whom employees feel comfortable being open and honest with and someone whom executives can trust to make the right decision.
If someone at your company is not able to 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.
3. Plan the 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 it might require extra assistance, a specific timeline, or gaining access to stored information. Some questions to ask yourself:
Whom are you going to question?
Your investigation should be thorough enough to provide the appropriate amount of 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.
What will you ask HR investigation witnesses?
Once you’ve chosen the people you need to interview, don’t walk into those interviews empty-handed or as though they are all the same. Be prepared ahead of time with questions that will help you get the information you need, but that are also tailored to respect the feelings, relationships, and access permissions of the interviewee—i.e., what they need to know vs what they are permitted to know.
What documents and records do you need to gather?
Evidence you might consider requesting includes emails, written warnings, supervisor’s reviews, personal files, or proof that company policies were communicated to the accused employee. This is one of the reasons it’s so important to have organized and accurate employee records at all times.
4. 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 to assure them their responses are confidential, to request that they keep the interview confidential, and to 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.”
This statement is something you should draft with advice from legal counsel so you are sure you are providing correct information and protecting 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.
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 you are 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 come to a conclusion.
5. 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.
6. Create a report.
If your company policy indicates there should be an action towards an employee as a result of your decision—whether it’s a written warning, probation, termination, or anything else—that should go to a preselected and discrete team to make a final decision. This might include your executive team, legal counsel, or a person deliberately kept outside the investigation to preserve their impartiality.
Collect all of your information and compile it in a summary report to give to this group along with your recommended action. In your report, you should also 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.
HR Investigation Questions
As mentioned before, you might be questioning your employees about some very sensitive topics during a workplace investigation. 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.”
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/coercion.
HR Investigation Questions for Witnesses
The questions you ask will vary based on what violation you are investigating and who you are questioning. But SHRM suggests a few questions you may consider asking:
- 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 somehow 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?
Does HR Have to Investigate a Complaint?
Many organizations choose to investigate every complaint they receive. Your organization is legally obligated (e.g., Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Occupational Safety and Health Act (OSHA), the Sarbanes-Oxley Act, state and local nondiscrimination laws) to investigate harassment, discrimination, retaliation, and safety complaints. Because of this, we do 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.
What Are the Rights of an Employee?
Your Miranda Rights don’t extend to workplace investigations. 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.
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 was acting in good faith with their complaint, your organization must respond in good faith.
Retaliation can come in many forms, from scheduling someone’s shifts during less desirable times to overlooking them for a promotion. It could also take the form of 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 U.S. Equal Employment Opportunity Commission reports that more than half of discrimination lawsuits contain a retaliation charge.
As we suggested before, you should involve your legal team from the beginning. They can help you educate employees about their rights during an HR investigation and avoid unnecessary complications.
How Long Does It Take HR to Investigate?
Your HR investigation timeline will vary based on the complaint. But when you receive a complaint, you should start acting immediately. Addressing policy violations should be a top priority so you can protect your company and employees and keep your business running smoothly. Cassies insists, “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.”
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. “It feels like a lot of work and is a lot of work,” says Cassie, “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.”
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 at the conclusion of 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 maybe you’ll have fewer investigations in the future.
The results of your HR investigation may not please everyone. The decisions may be difficult to make. But as long as you act in good faith, you should feel confident that you protected the needs of your employees and your company.