A fair investigation is the employer’s best evidence of reasonable care.
No statute prescribes the steps of an internal investigation, but courts and the EEOC expect one that is prompt, thorough and impartial. This guide sets out those standards in practical terms.
What prompt and impartial means.
General guidance only, not legal advice. Standards for investigations are refined by courts and agencies, so check current sources.
Prompt
Start the process quickly after a report, put interim protections in place, and finish within a reasonable and documented time rather than letting the matter drift.
Impartial
The investigator should have no stake in the outcome, no reporting line to the accused, and no prior view of the facts.
Thorough and Documented
Interview the complainant, the accused and witnesses, collect documents, record findings and the reasoning for the conclusion.
Building a process that holds up.
In Faragher and Ellerth the Supreme Court tied an employer’s defense to its exercise of reasonable care to prevent and promptly correct harassment. How the employer responded to a complaint is therefore central evidence.
The EEOC’s enforcement guidance describes an adequate response as one that is prompt, fair and proportionate, with corrective action reasonably designed to stop the conduct. A written outline of steps and a file kept by one custodian make the record easier to defend.
Tell both sides what to expect, remind them that retaliation is prohibited, and close the loop in writing without disclosing more than necessary.
Where this shows up in your plan.
Interim Measures and Hours
Interim schedule or leave changes should not cut hours below plan eligibility thresholds for the complainant.
Paid Administrative Leave
Paid leave generally keeps employees active under the plan; unpaid leave may trigger plan eligibility or COBRA questions.
Closing the File
Keep the finished file under the applicable retention rules, and store it away from both the personnel file and the benefits records.
Setting it up.
Write a one-page investigation procedure with named roles.
Choose an investigator with no conflict of interest.
Set a target timeline and record any delay and its reason.
Prepare interview outlines and a standard confidentiality reminder.
Close with a written outcome and a follow-up check.
Mistakes to avoid.
Letting the accused’s manager run the investigation.
Reaching a conclusion before interviews are complete.
Promising total confidentiality that you cannot keep.
Failing to document the reason for the outcome.
Other rules employers work with.
Workplace Investigations Employer Guide
Return to the parent guide.
Harassment and Discrimination Rules
What triggers an investigation.
Employee Handbooks and Arbitration
Complaint procedures.
Laws and Rules Referenced
Faragher v. City of Boca Raton, 524 U.S. 775 — Employer’s defense where it exercised reasonable care to prevent and correct harassment.
Burlington Industries v. Ellerth, 524 U.S. 742 — Vicarious liability.
Elliott-Larsen Civil Rights Act, MCL 37.2202 — State-law employer obligations on discrimination and harassment.
Quick answers.
Quick responses to the investigation-standard questions employers bring us, each linked to the complete guide.
How long should an investigation take?
There is no fixed number, but it should start promptly and conclude within a reasonable time on the facts, with delays recorded.
Does the investigator have to be an outsider?
No, but the person must be impartial and trained. Outside investigators suit cases involving senior leaders.
Can we promise confidentiality?
Only to the extent the process permits; tell participants up front that information goes to those who need it.
More guides in this series.
Investigating Union-Represented Employees and Weingarten Rights
A companion guide in the same series.
Using Outside Investigators, Privilege and FCRA Considerations
A companion guide in the same series.
Leave During a Workplace Investigation and Group Health Coverage
A companion guide in the same series.
Benefits After Termination Following a Workplace Investigation
A companion guide in the same series.
Investigation Records and Employee Privacy in Michigan
A companion guide in the same series.
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