Overview For Performing Internal Investigations

The following are excerpts from our 'Internal Investigation Training & Certification Program'. These excerpts provide a brief overview of the steps for handling an internal investigation, including:

• Receiving, processing, and documenting the complaint
• Determining whether an investigation is warranted
• Gathering evidence
• Interviewing witnesses
• Writing an 'Investigative Report'
• Concluding the investigation

The Excerpts:

> What Is An Internal Investigation?

An internal investigation is a formal inquiry to determine if organizational policies and/or laws have been violated.

The most common types of investigations taking place today are:

• Discrimination
• Harassment
• Hostile Work Environment
• Retaliation
• Safety Issues
• Misclassified Workers
• Employee Misconduct
• Workplace Theft

...with investigations for age discrimination, FMLA leave abuse, and overtime pay on the rise.

This course provides rationale and statistics as to WHY these areas may cause a complaint or an investigation. Knowing these reasons may help employers to better understand - and prevent - issues from arising or having internal issues escalate to the point where a complaint is lodged and an internal investigation needs to be conducted.


> Common Areas Of Complaints & Investigations

Investigations in workplaces are triggered by a complaint, allegation, a suspicion of misconduct, or any number of other reasons.

This course provides some specifics on some of the more common types of investigations, namely:

• Harassment
• Discrimination
• Safety
• Theft, fraud, or misappropriation of resources
• Misconduct
• Regulatory agency inquiry

> What Is Retaliation?

"Retaliation" generally can be defined as illegal conduct or action that harasses, demotes, terminates an employee, or takes other action affecting employment such as threats, unjustified negative evaluations, unjustified negative references, increased surveillance, or any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.

Employment laws forbid retaliation when it comes to any aspect of employment, including:

• Hiring
• Firing
• Pay
• Job assignments
• Promotions
• Layoffs
• Training
• Fringe benefits
• Other terms or conditions of employment

Almost every federal and state law governing the workplace has an anti-retaliation provision. For example:

• Under the Family & Medical Leave Act, it is retaliation if an employer were to terminate an employee for exercising his/her rights to take leave
  
• Under the Occupational Safety and Health Act, it is retaliation if an employer were to terminate an employee for reporting unsafe working conditions
  
• Under the Fair Labor Standards Act, it would also be retaliation if an employer were to discipline or terminate an employee for lodging a complaint about overtime pay or for being improperly classified as an exempt employee

All of the laws the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL) enforce make it illegal to fire, demote, fail to promote, harass, or otherwise “retaliate” against people (applicants or employees) because they filed a complaint either with the DOL or EEOC or internally with their employer.

Retaliation is also prohibited because the employee complained to their employer about other certain prohibited conduct on the job, or because they participated in an employment proceeding, such as an investigation or lawsuit.

It is also illegal for an employer to retaliate after the filing of a charge or complaint, even if the regulatory agency determines no prohibited actions even occurred.

Administrative Tip:
Employers should note that the EEOC often finds no probable cause on an employee's original complaint (such as harassment, discrimination, etc.), but then finds cause on the related retaliation claim.

> Handling Allegations Of Harassment Or Discrimination By Poorly-Performing Employees

A common trend among poor performing employees is to suddenly raise allegations of harassment or discrimination by lodging complaints with the HR department - at precisely the time he/she is being held accountable for poor performance or behavior.

Nevertheless, it is important to bear in mind that even though an employee's complaint may not have any merit, the complaint must still be investigated.

Also, if the employee should suffer adverse treatment after having made a complaint, the conditions for a retaliation claim can be created. An example of this is a manager who radically changes an employee's work schedule from dayshift with weekends off to-suddenly-midnight shift with Tuesday and Wednesdays off.

If this radical change is made shortly after this same employee made a complaint to HR (or another manager, EEOC, etc.), it quite possible that a causal connection could be made between the employee’s complaint and the employer's adverse treatment of the employee.

Note: Managers act as agents of an organization. Therefore, the supervisor and manager actions are as if the organization itself created an adverse action against the employee.

What Should I Or The Organization Do If I Get One Of These?

If you are an investigator in receipt of a retaliation complaint, you must evaluate the facts regarding whether or not the change in shift, work assignments, etc. were connected to the complaint.

If it appears there is a strong causal connection, the greater the risk of retaliation. The investigative actions to take from that point will depend on the specific case; however, placing the alleged perpetrator (more than likely the manager) on paid administrative leave would be a wise course of action.

Additionally, it may also be wise to place the complainant on paid administrative leave until the matter can be more thoroughly investigated and leadership decisions can be made.

Best Practices Tip:
In situations in which a member of the leadership team has engaged in retaliatory behavior, it is essential to consult organizational policies to determine appropriate consequences. Also, it is essential to consult with legal counsel. In doing so, it can minimize negative financial impact to the organization.