Checklist for Internal Investigations

How an employer responds to an employee complaint or allegations of misconduct can make the difference between promptly and effectively resolving the issue—or stepping into an expensive and protracted legal battle. And whether an internal problem is handled properly often boils down to the investigation process. A thorough and effective investigation can be the critical factor in preventing a lawsuit, and courts have made it clear that it can be the backbone of a successful defense if a suit is filed (of course, not all lawsuits can be prevented in the first place). On the other hand, a botched investigation can itself create legal liability, even if none existed before.

We’ve compiled this checklist for employers to use as an investigation reference, to help determine whether an investigation should be launched and the steps to completing it. Because an investigation has the potential to both create and prevent legal liability, be sure to contact legal counsel if you have any questions about how to proceed.

Legal Implications 

• Do you have a reasonable basis for conducting an investigation?
• Are you familiar with California and federal laws addressing employee privacy and confidentiality?
• Are there collective bargaining agreements, company policies, or trade practices that may affect your investigation, interviewing employees, or gathering of documentation?
• Are you prepared to objectively evaluate all information you discover as part of your investigation?
• Are you prepared to take reasonable actions to correct any problems you uncover or confirm during the course of your investigation?
• Are you prepared to call in professionals to deal with potentially violent or dangerous situations?

When to Conduct an Internal Investigation 

• Has an employee made a complaint of any form of harassment, threatening behavior, or intimidation?
• Have you been made aware of an unsafe business practice or a violation of California or federal safety requirements?
• Has there been a death or serious injury at your place of employment?
• Has there been a threat of violence at your organization?
• Has a member of your management team observed unreported acts of harassment or inappropriate behavior involving employees?
• Have employees commented on inappropriate behavior, even though they insist they are not making official complaints?
• Has an employee complained of unfair or unlawful treatment?
• Are you concerned about workplace wrongdoing, unsafe practices, or illegal actions?

• Have you determined what information you are trying to gather?
• Have you established a timeline to ensure the investigation is promptly conducted and concluded?
• Have you evaluated the situation to determine whether the investigation should be handled by a qualified outsider or by someone within your organization?
• Have you reviewed all relevant files and records before beginning your witness interviews?
• Are you familiar with California and federal laws affecting employee investigations and interviews?
• Have you determined which employees and non-employees are likely to have information about the subject of the investigation?
• Have you determined the order in which you will interview employees and non-employees?
• Have you taken steps to protect employee privacy, but avoided promises of confidentiality?
• Are you monitoring the workplace to ensure employees are not harassed or retaliated against as a result of their participation in the investigation?
• Do you have a system to maintain careful records of your investigations, which includes keeping those records in a secure place?
• Do you have a system that will remind you during the course of the investigation to periodically review the information you have obtained and consider whether additional information should be gathered?
• Have you thoroughly analyzed and verified your findings?
• Does your report of findings summarize the information gathered, your conclusions, and the subsequent actions that should be taken?

For more information on conducting internal investigations, consult CEA’s exclusive Special Reports, Employee Complaints: An Investigation and Action Guide and The Step-By-Step Sexual Harassment Prevention Guide for California Employers.