This workbook is designed to guide organization administrators responsible for investigating reported allegations or evidence of employee misconduct.  The purpose of an investigation is to gather all facts needed to make a determination as to what occurred or did not occur.  Conducting a sound investigation is important in several ways, including to make relevant decisions involving employees and to protect the organization from liability.  The investigation also helps maintain the organization’s credibility, reassures those involved that the organization acts in a thoughtful, responsible, and fair manner, , and guards against future improper conduct.  This workbook provides a step-by-step guide for conducting an investigation.

A substantial portion of the discussion and many of the examples in this workbook focus on workplace harassment investigations because this is a common type of investigation employers conduct and harassment investigations are addressed in a substantial body of case law, as well as the Fair Employment and Housing Act (“FEHA”) regulations and guidelines of the California Civil Rights Department (“CRD”), formerly referred to as the Department of Fair Employment and Housing (“DFEH”) before July 1, 2022.  However, the principles and best practices concerning workplace harassment investigations discussed in this workbook generally apply recommended principles and best practices for all types of employee misconduct investigations that an organization may need to conduct.

Topics Include:

When Should an Investigation Be Conducted?   

• When There Is A Possible Violation Of A Standard Of Conduct
• When There Is Alleged Or Suspected Harassment, Discrimination, Or Retaliation
• Workplace Harassment Prevention Guide for California Employers
• Before The Investigation Begins

Who Should Be Assigned To Conduct The Investigation?

• Selecting The Right Person For The Job
• When To Use An External Investigator
• Investigator Determines The Facts
• Using An Attorney To Conduct An Investigation
• Using An Attorney To Direct A Third Party Investigation
• Must An External Investigator Be A Licensed Private Investigator?

Beginning The Investigation

• Preliminary Issues To Consider Prior To Starting The Investigation
• Possible Interim Action
• When Do You Advise The Employee That He Or She Is The Subject Of An Investigation?
• Communications With The Board
• Communications With The Organization's Community And The General Public
• What If The Subject Matter Of The Investigation Implicates Possible Criminal Conduct in Addition to Possible Policy Violations?
• Have A Good General Knowledge Of Organization Policy Regarding The Conduct Alleged

Gathering the Facts        

• Create A Binder
• Background Documents
• Documentary And Physical Evidence
• Interviews
• Concluding The Investigation

Evaluating The Facts

• Review The Investigation Binder
• Make Factual Findings
• Make Conclusions Of Policy Only– If Directed To Do So

Writing the Report

• Contents Of The Report
• Attachments To The Report
• Confidentiality Of Investigation Report: How Much Can Or Should Be Disclosed To The Complainant Or The Accused?

Taking Corrective Action