Say “Yes” to the Workplace Investigation!
We all know about workplace investigations, right? At least from TV. Much TV these days is some form of investigation-related drama — Law & Order, Suits, Jack Reacher, and, for you history drama fans, The Law According to Lidia Poët.
And from real life as well, as nearly every organization conducts (or should conduct) investigations from time to time. Heck, technically, trying to find your missing red stapler is a workplace investigation. “Where did I last see it? Where is it supposed to be? Who used it last? Ah — there it is!” Investigation concluded.
Of course, most investigations are not quite that simple. But no matter how serious or trivial the allegation, the approach should be consistent. The scope may change — but the method should not.
What Is a Workplace Investigation?
Merriam-Webster defines “investigate” as “to study by close examination and systemic inquiry.” An effective investigation allows a company to identify and analyze workplace issues in an organized way, leading to meaningful, rule-compliant solutions.
In practice, a workplace investigation is a tool — carried out through trained investigators and appropriate policies — that helps an organization stay compliant with laws and industry regulations, maintain a safe and productive workplace, support a healthy company culture, boost employee morale and decrease employee turnover, troubleshoot efficiency and/or productivity issues, maintain a positive company brand, and, importantly, save money.
Is an Investigation Really Necessary?
As a labor and employment attorney, I often hear, “do I really need to do an investigation?” Usually, this question arises when the allegation seems minor, the employee has a history of complaints, it is a repeat issue (or the company thinks the issue has been addressed and is moot), the employee is about to quit, or all of the above.
The answer? Yes. Every time.
If there is an incident report, a complaint, or even a hallway conversation that raises concern, it should be addressed. Investigations are necessary for allegations involving harassment, discrimination, or retaliation; misconduct (such as theft or fraud); policy violations or safety concerns; whistleblower complaints; performance issues; and production mishaps.
Once an employer is on notice of a potential issue, the obligation to investigate kicks in — regardless of whether the employee stays or leaves. The company has a duty to maintain a safe, lawful, and equitable workplace.
Tanzi Cannon-Eckerle
“Beyond litigation risk, investigations signal to employees that the company takes concerns seriously, the workplace is safe and fair, and inappropriate behavior has consequences.”
The Risk of Inaction or Poorly Executed Action
Well, aside from avoiding lawsuits (kidding … but not really), a timely, impartial investigation can help resolve internal issues, prevent escalation, and demonstrate a commitment to a respectful workplace.
According to the Equal Employment Opportunity Commission (EEOC), workplace investigations are a crucial tool in addressing and preventing claims of harassment, discrimination, and retaliation. In 2024, the EEOC received more than 88,500 claims, while the Massachusetts Commission Against Discrimination (MCAD) received more than 3,500 claims (with approximately 70% of them moving beyond administrative dismissal in one form or another).
A well-executed investigation can provide a solid defense in legal matters — and even help companies avoid them altogether. Side note: 22% of the MCAD claims are retaliation claims, and 21% are disability-related. These types of issues are more preventable than most, but we can talk about that next time; there is no room in this article for me to stand on my soapbox to discuss those issues.
But beyond litigation risk, investigations signal to employees that the company takes concerns seriously, the workplace is safe and fair, and inappropriate behavior has consequences. All of this contributes to employee engagement — and engaged employees are productive employees. Conversely, failure to act can lead to chaos, disengagement, and liability.
The average cost of a workplace harassment lawsuit? About $75,000 to get to pre-trial settlement, while pre-trial to trial defense costs average $125,000 to $250,000. That does not even include a potential jury award for the plaintiff, reputational damage (64% of consumers have stopped purchasing a brand after hearing news of a company’s poor employee treatment), or regulatory scrutiny. A poorly handled (or non-existent) investigation can make matters worse, opening the company, and sometimes individual managers or executives, to further legal exposure.
So, yes, it is necessary to conduct timely investigations using skilled investigators that utilize a productive investigation process that can later be defended.
Who Should Conduct the Investigation?
Good question. The wrong investigator can create a problem all by themselves. Is the person too close to the issue? Do they have a conflict of interest? Have they been trained?
I have recently had several conversations (be still my investigator-geek heart) about who should investigate and whether hiring an outside consultant is always necessary. Some argue, “if I can run the company, I can run an investigation.” Technically? Probably.
But should the owner or a C-suite executive do it? Absolutely not. That is a recipe for accusations of bias, and also, don’t they have better things to do — like, I don’t know, running the company? Others say every investigation should be outsourced. That is a bit extreme, too. You wouldn’t hire a consultant to find your red stapler.
“Though external investigators may be more costly, the cost is likely less than a poorly handled investigation, and external experts likely have no motive for bias.”
The right answer is the classic lawyer fallback: it depends. On the issue. On the people involved. On the scope. Investigating is a learned skill. If your team is trained, and you have a solid policy and process, many internal investigations can be managed in-house.
For higher-risk matters, or for investigations that are broad in scope, bringing in an external, independent expert is often the better move. Though external investigators may be more costly, the cost is likely less than a poorly handled investigation, and external experts likely have no motive for bias. And because of their expertise, which includes being skilled interviewers, they often investigate efficiently, create less workplace disruption, and make better witnesses if a lawsuit were to be filed.
In the words of Reacher, “you do not mess with the special [external] investigators!”
What Should a Typical Investigation Involve?
Not all investigations are the same, but there should be a consistent procedure. Depending on the type of issue being investigated and the scope, some procedural steps may not be necessary, but it is best to leave that to the investigator to determine.
Generally, the company should receive and respond to the complaint or allegation; this is usually someone in human resources. At this point, the ‘timeliness’ clock starts ticking, which is important to a defense of a claim.
The initial response to the complaint should briefly state that the concern has been received, and next steps are being taken, ensuring confidentiality (to the extent practicable). Next, the company should take immediate interim action to prevent further harm, if applicable (such as separate employees, administrative leave, or temporary accommodations). It is also a best practice to remind stakeholders about the rules governing retaliation.
Then the company chooses an investigator. Once this is done, the investigator should do a preliminary review of the allegations, do initial fact gathering, and determine the scope of the investigation. At this stage, the investigator should decide whether it is necessary to use an external expert.
Next, the investigator should develop an investigation plan, outlining the objectives, scope, and timeline of the investigation. The investigator then collects evidence, such as gathering relevant documents, records, and witness statements, reasonably ensuring confidentiality and maintaining a chain of custody.
Next, impartial, thorough witness interviews should be conducted using active listening skills and open-ended questions. Then the investigator should analyze the evidence, identifying patterns, inconsistencies, and credibility issues, and draw conclusions based on the findings. Then the investigator must compile a comprehensive report detailing the findings, conclusions, and recommendations for corrective action or remedial measures.
Lastly, the investigator should counsel the company on implementing the recommended actions, and the company should ensure accountability and provide employee support. If a lawyer is used as an external investigator, the lawyer may counsel the company about legal risks and make recommendations.
Best practices include using trained, impartial investigators; avoiding conflicts of interest; maintaining confidentiality and proper documentation; being thorough and prompt; and keeping accurate records and reports that can stand up to scrutiny.
One of the most overlooked areas? Record keeping. Even the best investigation won’t help in court (or with regulators) if there is not adequate documentation. Investigators must maintain accurate and detailed records of the investigation, including notes, documents, and evidence, and must know how to draft accurate investigation reports in a manner that will withstand opposing counsel, agency, or judicial scrutiny.
Final Thoughts
Workplace investigations aren’t just for TV dramas; they are essential risk-management tools for every organization. When done right, they protect your business, your people, and your reputation. And if you happen to find your red stapler along the way? Even better.
For more information you can reach out to Tanzi Cannon at General Counsel by Cannon, PLLC. at t.cannon@gcbycannon.com, 413-369-9225 or go to www.GCbyCannon.com.
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between General Counsel by Cannon and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.
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