10 Emerging Issues to Consider When Conducting Workplace Investigations

Quick Hits

• Workplace investigations are becoming increasingly complex and nuanced, forcing employers to proactively consider how to conduct such investigations and avoid common pitfalls.
• Employers may want to review protocols to ensure investigations account for evolving work environments and changing workforces and are conducted in a manner that promotes credibility and confidence in the outcome.

1. Overall Increase in Investigation Volume, Nuance, and Complexity

The landscape of internal complaints is changing dramatically. Employees are more willing to speak up and are increasingly demanding in their expectations. This shift has led to a rise in overall complaints, in particular complaints that raise systemic issues or so-called reverse discrimination claims and complaints regarding political expression in the workplace.

2. Mental Health Vocalization Has Increased

Employees are now more likely to raise mental health as a concern than ever before. This trend impacts witness interviews and the overall investigation process. Not only are employees raising concerns over the impact on their mental health by conduct in the workplace, but they are also raising concerns that the investigatory interview is a source of feeling psychologically unsafe. Ensuring employees feel safe and supported during investigations is crucial for obtaining accurate and reliable information. Employers may want to emphasize psychological safety throughout investigations and be prepared to address mental health concerns sensitively and effectively.

3. Remote Work Introducing New Complications

The post-COVID prevalence of remote work has introduced new challenges for workplace investigations. Remote work environments can lead to coworkers having fewer interpersonal interactions, which causes employees to not know each other. Moreover, remote work allows for a platform of inappropriate on-camera behavior, comments, and other unprofessional behavior. And in some ways, the lack of employees knowing each other has exacerbated the problem. At the same time, conducting investigations involving remote employees or workforces can be more complicated, particularly when conducting remote witness interviews. Employers may want to incorporate “proper remote conduct” protocols into their training programs to address these issues proactively.

4. Return to Office Uptick in Inappropriate Employee Conduct

With pandemic concerns waning, more and more employers are requiring employees to return to the office at least for part of the workweek. However, transitioning from remote to in-person interactions can be challenging as many employees need to relearn appropriate in-person behaviors. This is especially prevalent at employee social events such as conferences and other group events. Incidents often escalate into situations or disputes that require investigation. Employers may want to consider policies concerning appropriate social interaction at in-person events to help employees navigate these interactions appropriately.

5. Increased Ability to Manipulate Information

The emergence of artificial intelligence (AI) and deepfake technology has made accurate information gathering in workplace investigations more complicated, so employers may want to ensure that these technologies are considered during investigations. Employers have access to technology to gather more electronic evidence, such as texts, chats, and data captured on smartphone cameras and voice recorders. Technology also makes it possible to fabricate or falsify evidence. Thus, credibility assessments and corroborating evidence are even more critical for investigators. Organizations may want to consider utilizing forensic computer specialists to address concerns about manipulated emails and documents.

6. Post-Separation Grievances More Common

There has been an increase in post-separation complaints, with former employees raising issues during or after leaving the organization. Employers may want to look for “investigation triggers” in resignation letters, exit interview statements, and close-out emails that signal a post-separation complaint. Such “triggers” may prompt the need for an investigation. Moreover, dismissing post- or during-separation complaints as “sour grapes” is not a viable defense. These are serious allegations, so organizations may want to analyze them through normal protocols to determine whether an investigation is warranted.

7. Investigation Process Matters

Given the heightened complexity of workplace complaints and investigations, conducting investigations in a manner that promotes credibility and confidence in the organization is increasingly important for employers. Workplace investigations are not just about the result. The process of the investigation and making sure employees are and feel heard is an important part of the process.

8. HR Departments Are Incredibly Busy and Can Lack Sufficient Bandwidth

The increase in complaints has overtaxed many human resources (HR) departments, leading to botched investigations and increased litigation. Organizations may want to consider training staff on conducting investigations and the potential benefits of outsourcing investigations. Lack of training is a common way to challenge investigations, making investing in proper training and resources essential.

9. Longer Investigations and Increased Costs

Remote and video investigations and the sheer volume of data and documents to review have extended the duration and increased the length and cost of workplace investigations. Employers may want to ensure that texts, call logs, recordings, emails, chats, and photos are meticulously reviewed. In some cases, a forensic expert may be required.

10. Investigations Being Challenged in Court

Workplace investigations are increasingly becoming the centerpieces of litigation. While an issue might arise from a relatively minor act of harassment or discrimination, the focus of lawsuits often shifts to allegations that the employer failed to fully or properly investigate. Common challenges to investigations include allegations that the employer failed to promptly investigate, did not properly or sufficiently document the investigation, and/or failed to reach conclusions. Additional challenges include allegations of investigator bias and whether the investigation is confidential and privileged. Employers may want to carefully consider the potential legal challenges to the credibility and validity of an investigation before and during the investigation.

Ogletree Deakins’ Workplace Investigations and Organizational Assessments Practice Group will continue to monitor developments and will provide updates on the Employment Law and Workplace Investigations and Organizational Assessments blogs as additional information becomes available.

A version of this article was previously published in an ACC Mid-America Chapter member newsletter.

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