July 29, 2022

Best Practices: Workplace Investigations

Many state and federal laws require an employer to investigate employee complaints in a timely manner (e.g., California Fair Employment & Housing Act, Title VII, ADA/ADAAA). Prompt and thorough investigations ensure accurate recollections and give the employer the opportunity to quickly take all appropriate corrective actions.

The first steps taken by an employer in any investigation are crucial. Securing information, maintaining confidentiality, and providing any necessary alleged victim protections are important first steps an employer should take after receiving any complaint. According to the California Department of Fair Employment and Housing (DFEH)[i], to comply with the state’s legal mandate that to, “take reasonable steps to prevent and correct wrongful[ii] (harassing, discriminatory, retaliatory) behavior in the workplace, employers should take the following basic steps:

  • Review all relevant company policies implicated by the alleged conduct.
  • Provide ‘Due Process’ by striving to be fair to all parties during the investigation:
    • Start the interview process by conducting a thorough interview with the complaining party.[iii]
    • Provide the accused party with an equal opportunity to be heard and to tell their side of the story.
  • Follow up these first two interviews with relevant witness interviews and a review of any important or related documents.
  • Consider what other steps might be taken that would allow the employer to gather all the facts (e.g., visit the worksite, review video, take pictures).
  • Reach a reasonable and fair conclusion, based on the information collected, reviewed, and analyzed during the investigation, as to whether a violation of company policy has occurred.

Many state and federal laws require the employer to advise complainants of the outcome of any investigation. This does not necessarily require full disclosure of the exact disciplinary steps taken —or not taken. A general statement indicating a full investigation was conducted and a conclusion reached (e.g., proof of misconduct or no proof of misconduct) and if applicable, that remedial measures have been taken should suffice. This is also an opportunity to follow up with the complaining party to be sure the problem has been resolved and they have not experienced any retaliatory conduct.

[i] DFEH Workplace Harassment Prevention Guide for California Employers.

[ii] Cal. Govt. Code §12940(k)

[iii] All interviews should be conducted in person or remotely as circumstances allow. It is not recommended that interviews be video recorded.