Mark Flynn, Director, Specialized Legal Services
What constitutes a workplace investigation is often presented to me as a “basic” question. I think of it as a question that requires a firm grasp of “basic principles.” One such basic principle in HR best practices is, “Document, document, document.” This is where the understanding of an investigation begins, especially since the need for documentation correlates with fact finding. Documentation should contain management’s observance or suspicion of workplace conduct that fails to meet performance or behavioral expectations.
The best supervisors and managers document all the time, or so it might seem to them. If an employee has a complaint or a supervisor observes conduct short of expectations, documentation ensues. Good documentation focuses on facts and so do good investigations. But what is the difference between fact finding and investigation? Appreciating that distinction is the key to understanding what defines an investigation.
If simple or even not-so-simple fact finding leaves nothing further to resolve than there is no need to “investigate.” The employer has the information necessary to make decisions on corrective action, if any. By contrast, an “investigation” incorporates resolving underlying conflict beyond the collection of relevant facts. The element of conflict is often represented by contrasting versions of relevant facts or perceived motivations, i.e., “I didn’t get the job because of my race.” When that element of conflict combines with suspected or alleged misconduct including an adverse employment action, it is time to investigate.
Whether termed an “investigation” or “assessment” or something else to curb negative connotations, what defines workplace investigation must also speak to its validity. Case law has established the standard for “appropriate” investigations in consideration of the totality of the circumstances. The Equal Employment Opportunity Commission describes an appropriate investigation as prompt, unbiased, and thorough. Underpinned by these building blocks, here is my definition:
An investigation is a timely, impartial, and thorough collection and assessment of relevant facts and circumstances toward findings that support informed decisionmaking in the workplace.
As you might guess, there is much more going on in this definition and I’m always eager to talk investigations and the inevitable complexities that develop in the workplace. If you have a question concerning this, I am happy to discuss it with you. Email me at firstname.lastname@example.org.