Common Pitfalls of Workplace Investigations

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When issues arise with employees in any workplace, increasingly workplace investigations are used as both a risk management tool for employers as well as to develop and understand the “facts” of what transpired that caused the issue. When conducted properly, workplace investigations resolve disputes, uncover misconduct, protect employees, and protect employers from liability exposure.

When conducting a workplace investigation, it is important for any employer to have a firm understanding of what can and cannot be said and done in the investigation and what resolutions can be arrived at following the conclusion of the investigation. Common issues that arise when employers conduct investigations without proper training, counsel, or other assistance are as follows:

  1. Defamation. Defamation occurs when false statements or damaging information is communicated to a third party, causing harm to an individual’s reputation. During investigations, there is a fine line between sharing relevant information with necessary parties and spreading unverified or sensitive details that may harm an employee’s reputation. Always seek counsel on what information may be protected under the law and what information can be shared.
  1. Failing to Investigate. An incomplete or superficial investigation can be just as damaging as not investigating at all. It is essential that all reports be properly investigated to prevent retaliation claims. If new information develops, it must be followed-up on, otherwise whatever benefit the investigation may offer the employer is limited. Furthermore, failure to properly investigate may lead to conflicts going unresolved, undermine trust within your company, and litigation. 
  1. Failing to be Fair and Neutral. Impartiality is a cornerstone of effective workplace investigations. Failure to do so may taint the entire process, resulting in a loss of trust from employees and potential legal consequences. Using a neutral, third-party is important to conducting a neutral investigation.
  1. Humiliating or Intimidating Employees. It is important to ensure investigations are conducted in a private, calm atmosphere. Maintaining open lines of communication encourages employees to express their concerns. Use of shaming language or actions can cause intimidation and later result in unnecessary litigation. 
  1. Privacy Invasion. Clearly communicating the purpose and scope of the investigation is important to respect employees’ privacy rights. Invading an employee’s privacy without proper justification can result in legal liabilities and breach of trust. 

Prompt and effective remedial action is the bedrock of a successful investigation. At Helsell Fetterman LLP we are familiar with the process and work with a number of employers in a wide range of industries to assist in these types of matters whether it be in an actual investigatory role or just counseling our clients and teams through the process.

About the Authors

Hannah Driscoll

Hannah Driscoll’s practice focuses in the areas of employment and education law, specifically defending schools and employers against discrimination lawsuits, as well as advising employers of best practices.

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