Addressing Common Pitfalls in Workplace Investigations: Lessons from HRPA’s 2023 Complaints

On September 25, 2023, the Human Resources Professionals Association published their quarterly Regulatory Affairs Newsletter. One section of this newsletter lists the complaints registered in the third quarter of 2023. This is of interest to us because it is where our core work intersects as both regulatory and workplace investigators. There were six complaints registered and two are related to alleged mishandling or inappropriate conduct in connection with HR professionals either conducting or overseeing workplace investigations. Here is a quick list of the core issues raised in these complaints:

 Interviews incorporated interrogation tactics
 Insufficient disclosure
 Lack of procedural fairness in the investigation process
 Failing to investigate all issues alleged
 Bias in the approach to the investigation – (lack of balance in review of information)
 Insufficient investigation into issues alleged
 Not understanding laws and regulations as applicable to workplace investigations

Now it is important to recognize these are complaints only and the issues raised have not been investigated. However, the story here is in the types of issues raised, which speak to each core component of an investigation including: mandate, planning, evidence collection, and interviewing. These complaints also speak to issues of fairness, bias, and competence. Human resources professionals are engaging in workplace investigations at an ever-increasing rate. The fallout of mishandled investigations leads to consequences for the parties to such matters, the employer, and, as we see from these regulatory complaints, possibly a professional licensing impact on those charged with overseeing or conducting these investigations. We have seen all these issues arise in cases we have had to take over, where mistakes have been made. The easy solution is to prevent this is to hire professional workplace investigators for these matters. However, the cost of such an approach is significant, and for some smaller organizations, not an option in every instance. So here are the things you can do in your organization to ensure you don’t have these issues and don’t put unfair expectations on people in your organization to investigate when they lack the knowledge or experience to succeed:

Training:

It starts with training. Those tasked with investigating matters must understand the principles of investigation fairness and approach as well as possess the knowledge and skills to engage in planning, interviewing, assessing evidence and making evidence-based decisions. There are great courses available, but none of these are mandatory, and because of that some HR people and even managers in organizations are thrust into the role of investigator. The investment of proper training by organizations in their people is critical.

Coaching:

Training is not enough. Taking a course will not get people all the way there. Experience is what leads to developing the nuanced skills of investigating. This is where organizations might struggle because even someone who took a course, might do one or two investigations a year and not have the opportunity to develop the skills and apply the knowledge. Investigation coaching and mentoring can fill this gap. A seasoned investigator can be retained to assist at key stages of a case and advise the novice investigator to assist them in building confidence, and competence.

Creating a Comprehensive Policy:

While investigations are not a rote endeavour, part of the challenge can be addressed with a well-defined policy that helps create a roadmap for conducting investigations. It should outline the steps to be followed, roles of all parties, rights of all parties, ethical guidelines to be adhered to, and the expected timeline for completion. A well-developed policy and process helps avoid inconsistency and common procedural mistakes, while enhancing understanding for all and transparency of the process.

Collaborating With Legal Experts:

Even with a trained investigator on board, involving legal counsel can ensure that the investigation adheres to legal standards. They can provide insights on statutory compliance, employee rights, and organizational obligations, ensuring that the investigation process is legally sound.

Ensuring Confidentiality: 

Protecting the privacy of all parties involved is crucial. Implementing strict confidentiality protocols ensures that sensitive information is handled with the utmost discretion, maintaining the integrity of the investigation, and protecting the individuals involved. Consider confidentiality undertakings with each participant in an investigation before sharing any information with them.

Continuous Improvement: 

Post-investigation reviews can be invaluable. Analyzing the steps taken, the decisions made, and the outcomes can help organizations identify areas for improvement. It’s a learning opportunity to refine the process, enhance training programs, and make necessary adjustments to the policies in place.

Establishing a Feedback Mechanism:

Implement a system where employees, and even those under investigation, can provide feedback on the investigation process. This feedback can be instrumental in making continuous improvements and ensuring that the process is perceived as fair and balanced by all parties involved.

Even in cases where an organization has experienced and skillful investigators, there will be cases where it is prudent to utilize external investigators. For example, a member of the Board of Directors, or individuals in the C-Suite are respondents or complainants; cases where there is a potential conflict of interest due to past dealings with some parties; or very serious cases that could come with significant consequences or likely adjudication.

Employees, Unions, and Legal Counsel all have expectations for properly conducted workplace investigations. These complaints at the HRPA demonstrate that anyone picking up the investigation mantle will be scrutinized on all aspects of their approach. Organizations, as well as the individuals involved, can suffer from an improperly executed investigation. The suggestions above can assist in mitigating the risk.