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Workplace investigations are a crucial part of Human Resources.  When complaints or conflicts arise, investigations are essential to addressing these issues and determining next steps.  The need for a workplace investigation is both legal and practical.  Workplace investigations allow employees to be heard, make it clear that an employer takes policies seriously, and get to the bottom of conflicts.  From a legal standpoint, addressing an employee complaint satisfies obligations in cases of harassment, discrimination and retaliation complaints, and can help reduce liability in these cases.

Prior to beginning a workplace investigation, an HR professional must address a number of strategic and practical questions.  Initial decisions to make include the scope of the investigation, the list of witnesses, the method of interviewing and documenting, and leave/discipline issues.  However, prior to even these considerations comes a much more fundamental one: who should conduct a workplace investigation?

Many organizations automatically task their HR professionals with conducting all workplace investigations.  However, there are several considerations to keep in mind when determining whether this is the best choice in each case.  While there are general characteristics that any good workplace investigator should have, there are also nuances specific to individual cases that may impact whether internal Human Resources is best placed to conduct an investigation, or whether the matter should be outsourced.

For the best possible outcome, a workplace investigator should be neutral, unbiased, thorough, and detailed.  However, more nuanced skills also come into play.  Good investigators are skilled at establishing rapport while maintaining professionalism and privacy, understanding confidentiality, conducting complex analysis, identifying issues, and other areas.  Training is crucial for investigators, not only for practical knowledge, but also to give credibility to the investigator should the report or findings be questioned. Another consideration in determining whether to use an internal HR professional as a workplace investigator is experience.  Courts and agencies may be more likely to give deference to a workplace investigation finding and report if the investigator had a reasonable amount of prior experience conducting workplace investigations.  Often, particularly in the case of smaller workplaces, investigations may not occur with enough frequency to provide an internal investigator with much experience, and their findings may receive less deference than those of a more seasoned investigator.  From a practical standpoint, experience leads to better investigation techniques and, consequently, more defensible results.

Another important consideration in determining whether to keep an investigation internal is the bandwidth and availability of the potential internal investigator.  Doing an investigation thoroughly and promptly takes a great deal of time.  Many HR professionals have significant and time-consuming duties, and it may compromise an investigation to add this task to an already busy HR professional’s list.

Employers should also consider the relationships and reporting structure of an internal HR professional in evaluating whether they are the ideal investigator in a specific matter.  If a matter involves a party above the potential investigator in their reporting line, or a member of the leadership team, the internal investigator may be seen as having a conflict of interest.  Even if an investigator is scrupulously ethical and unbiased, the very placement of the parties with regard to the investigator can significantly compromise the investigation and reduce the deference courts and agencies will give the findings later on. 

Another factor when determining whether to keep an investigation in-house is whether there are personal relationships that may create the appearance of a conflict of interest. HR professionals interact with many employees across an organization, and can form professional friendships, real or perceived, with employees who may be involved in an investigation.  This situation can compromise an investigation in the same manner as the reporting factor discussed above.  Additionally, employees who perceive a personal conflict of interest on the part of an investigator may question the investigation process and the results.  This perception can increase employee resentment and distrust of the organization, instead of resolving the issues at hand.

 If, after considering these factors, an employer determines that outsourcing a workplace investigation is the best option, they have many external choices available to them.  Numerous workplace investigation firms, including Employers Council, employ trained and experienced workplace investigators.  These investigators are skilled in interviewing techniques, strategy, and report writing, and can address even complex matters with competence and neutrality. 

Employers Council has assisted many members with not only workplace investigations, but the legal and practical considerations involved before, during and after a workplace investigation.  For more information about workplace investigations, see the whitepaper Investigations: Overview – When to Do One and What to Consider Before You Start or the Workplace Investigations Guide.  Visit our training catalog to register for the course Investigations in the Workplace. If you have questions about an issue you are experiencing, please reach out to us for guidance at info@employerscouncil.org.

Julia Paris is the Director of Colorado Membership Services for Employers Council.