October 2014 Bar Bulletin
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October 2014 Bar Bulletin

Considerations for Effective Workplace Investigations

By Patrick Pearce

 

Workplace investigations can arise in many contexts for both public and private employers. Investigations can be prompted by claims of sexual and other harassment, discrimination, whistleblower complaints, and other legally based charges. Investigations can also result from violations of internal policies such as required standards of conduct toward co-workers.

The EEOC has described the following criteria for conducting an effective investigation:

The employer should ensure that the individual who conducts the investigation will objectively gather and consider the relevant facts. The alleged harasser should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility.1

If the results of an investigation are subject to attack as ineffective or biased, the purpose of the investigation and the ability of the organization to use it as evidence that "the employer exercised reasonable care to prevent and correct promptly any harassing behavior"2 can be undermined. This is a common consideration for organizations that may result in retaining an outside investigator.

Whatever the context, if an investigation is performed, it is important that it be effective. When conducting a workplace investigation, some important considerations follow.

Establish the Scope

One of the most important and fundamental tasks at the beginning of an investigation is to establish the scope. If the investigator is a lawyer, RPC 5.7 should be reviewed to determine the lawyer's role and, if the investigation fits within RPC 5.7(a), the scope must be defined in a manner that is consistent with the requirements of RPC 1.2.

Investigators should clarify the exact issues that they will be examining. Establishing scope allows an investigator to focus only on the relevant issues and avoid pursuing or being sidetracked by topics and facts that do not bear on the concerns that initially prompted the investigation.


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