How to Conduct a Workplace Investigation
Founded in 2009, the Association of Workplace Investigators is a professional membership association for attorneys, human resource professionals, private investigators, and others who conduct, manage, or have a professional interest in workplace investigations.
AWI's mission is to promote and enhance the quality of impartial workplace investigations. AWI’s Guiding Principles Committee developed these principles in collaboration with AWI membership.
The Guiding Principles remain focused on impartial workplace investigations. An impartial investigation is generally conducted so that an employer can determine what occurred when there are contested allegations affecting the workplace that involve a potential violation of the employer’s policies, standards, ethics, or the law.
The point of an impartial investigation is to provide a fair and impartial process for the complainant and respondent and to reach reasoned findings based on the information gathered. These Guiding Principles were developed to assist investigators and enhance the quality of workplace investigations.
Guiding Principle #1:
The Decision to Conduct a Workplace Investigation
1. DECISION TO CONDUCT AN INVESTIGATION Guiding Principle: A workplace investigation should occur when indicated by law or policy as determined by the employer. Key factors to consider:
a. If key facts are in conflict, an investigation often is appropriate.
b. Even if key facts are not in conflict (e.g., the respondent has admitted the alleged conduct), the employer may need to determine the number of persons affected or the extent of harm.
c. Whether or not a violation is one of policy or of law may influence the decision.
d. Whether the complaint is based on the complainant being in a protected category is a consideration. If not, an employer may consider whether the conduct alleged nevertheless violates the employer’s rules, policies, practices, or expectations.
e. Allegations may call for an “organizational assessment” instead of an
Guiding Principle #2:
Choice of Investigator
2. CHOICE OF INVESTIGATOR Guiding Principle: The investigator should be impartial, objective, and possess the necessary skills and time to conduct the investigation. Key factors to consider:
a. Whenever possible, the investigator should be someone who is in fact, and who is perceived by the participants to be, impartial, though this may not be possible in every case.
b. Employers may choose to use an in-house (internal) investigator. In such a case, the internal hierarchy of the organization should be considered in order to avoid the fact or perception of bias or compromised objectivity.
c. Employers who choose to retain outside investigators should consider any licensure requirements which may apply to outside investigators.
d. An outside attorney investigator conducting an impartial investigation should appreciate the distinction between the role of impartial investigator and that of advocate.
e. Employers should guard against exerting undue influence on investigations. This does not preclude them, for example, without limitation, from preserving evidence, providing necessary notifications to employees, and providing input to investigators concerning the investigations’ scope.
f. The investigator should consider whether specialized expertise is required, and, if so, consider whether the investigator possesses the requisite expertise, whether the investigator should partner with another with the requisite expertise, or whether the investigator should decline the investigation.
Guiding Principle #3:
Scope of Investigation
3. SCOPE OF INVESTIGATION Guiding Principle: The employer and the investigator should develop a mutual understanding concerning the scope of the investigation. In this context, the “scope” of the investigation refers to the issues to be investigated. Key factors to consider:
a. Determining the scope of the investigation differs from determining the process to be followed in conducting the investigation.
b. During the course of the investigation, the investigator may become aware of issues that are beyond the initial scope of the investigation. If this occurs, the investigator generally should provide appropriate notice to the employer, which may include documentation, so that the employer can determine the appropriate course of action.
c. If requested to do so by the employer and if the investigator agrees, the investigator may include the additional issues with the original investigation or may conduct a separate investigation.
d. During the investigation, if the employer decides to change the scope of the investigation for reasons other than the discovery of additional issues, to limit interviews, or otherwise to restrict the investigation, the investigator may wish to document these changes or restrictions.
Guiding Principle #4:
4. INVESTIGATION PLANNING Guiding Principle: The investigator should engage in planning for an effective investigation. Key factors to consider:
Guiding Principle #5:
Communicating with Employer Representatives and Witnesses
Guiding Principle #6:
Confidentiality and Privacy
Guiding Principle #7:
Evidence Gathering and Retention
Guiding Principle #8:
Guiding Principle #9:
Documenting the Investigation
Guiding Principle #10:
Guiding Principle #11: