For more information please call  800.727.2766


4 Common Investigation Pitfalls


1. Not taking the complaint seriously

Any employee concerns raised, particularly those that allude to potential harassment or discrimination, need to be promptly investigated. Employers that choose to ignore, bury, or delay the investigation of employee complaints put themselves in a worse position down the line. Even if the complaint does not use legal buzzwords or is not filed through official channels, once management has become aware of the concerns, it is advised to fully investigate. It is also not necessary that the complaint be in writing or that the complainant identify him or herself before the situation is addressed. If future litigation reveals that the initial complaints on a matter occurred well before any action was taken, the employer may have more difficulty defending a lawsuit. Additionally, even if the complainant does not want any action to be taken, it is often the responsibility of the organization to investigate any concerns of which it is aware and to fulfill its duty to its employees under various employment laws. An investigation that is not initiated until months after concerns were raised, is already subject to criticism before it begins.         

2. Not choosing the right investigator

It is important that the right person is chosen to conduct the investigation. Sometimes the proper person can be a human resources professional or another internal employee. However, it is essential that the person conducting the investigation has been trained and is not involved in the underlying situation in any way. The investigation should not be conducted by an employee with no experience, nor should the investigator be someone who does not typically conduct investigations as part of their role. Sometimes it makes more sense to use an outside investigator to ensure neutrality and encourage participation. The hiring of an outside investigator can also highlight to employees the organization’s good faith and commitment to addressing the concern. If the concern is raised within the HR department or the legal department, it is best to retain an outside investigator. It is also helpful if the investigator has some knowledge of employment law and experience testifying in court.  

3. Making promises you are unable to keep

Many complainants will want their concerns to be kept confidential. Unfortunately, the nature of the investigation process requires investigators to report findings back to management. Investigators should not promise anyone to keep information completely confidential. Investigators can assure witnesses that the information they share will not be widely dispersed; however, there is always the caveat that information from the investigation may need to be shared for business or legal reasons. Investigators should also not promise to speak to a particular person or review a particular document in case that ends up not being an option. If a witness learns that the investigator did not keep a promise, he or she may lose confidence in the investigation process and not come forward in the future.

4. Failing to properly document the investigation

It is important to properly document each stage of an investigation. Initially, an investigation plan should be put in place so that there is a clear direction and scope for the inquiry. The investigation plan should note relevant policies, documents and potential witnesses. The investigation plan should also reflect who is directing the investigation and whether the investigation will be conducted under the attorney-client privilege. The investigator needs to take thorough notes during interviews and retain the notes in case any questions are raised later. The conclusion of the investigation should also be documented in a report or at least a memo to the file. Even if a definitive conclusion cannot be reached, investigators should attempt to conclude what happened even if it is qualified as “more likely than not.” Proper documentation of investigations can reduce organizational risk and can improve an investigation’s accuracy and effectiveness.