Workplace Investigations Are No Longer Novel

Since #MeToo, the notion of conducting a “workplace investigation” in response to an employee complaint has gone mainstream. In many organisations it has become the standard approach to concerns that potentially involve serious policy violations, while a subset of organisations employ investigation techniques like intake interviews even for matters that seem to be of lesser significance.

In New York State, conducting a workplace investigation is not just a best practice; for sexual harassment complaints, it appears to be a legal requirement. The New York State Human Rights Law requires every employer in the state to have a sexual harassment prevention policy that includes “a procedure for the timely and confidential investigation of complaints that ensures due process for all parties”.

There is no case law or other legal guidance in New York on what “due process” looks like in the workplace investigation context. And there is no legal mandate that an investigation be conducted at all outside the context of sexual harassment complaints. There are, however, best practices to be considered, which we are examining in two contexts: the latest trends in the types of complaints employees are presenting; and key considerations when selecting a workplace investigator.

Employee Complaints: The Boost of AI

“Intake” is the process of receiving an employee’s complaint. This usually involves a direct meeting with the complainant, during which the investigator’s focus should be on gathering the full scope and context of the employee’s complaint. Following the intake interview, the investigator then needs to assess the issues being raised.

• What are the concerns the employee has raised?
• Which of the organisation’s policies are potentially implicated by those concerns?
• What factual information has the employee provided in support of each concern?

Consider the written complaint

Sometimes an organisation receives a written complaint from an employee prior to the initial intake meeting. Where the written complaint is received first, the investigator should review it, identify the issues it raises, and prepare questions for the intake interview to ensure that the employee speaks to all the concerns raised in the written complaint.

Frequently there is more information to be shared, and additional details the employee can provide, through that in-person meeting. Those further details inform the investigator’s understanding of the concerns raised and are helpful in planning the next steps in the investigation.

Recognising when AI has boosted a written complaint

Typically, a written complaint is in the range of two to five pages, and largely in narrative form. It may begin or end with broad allegations, and be interspersed with terms like “harassment”, “bullying” or “toxic work environment”, but mostly it tells a story. Sometimes it is a shorter statement of largely generalised allegations, with perhaps one or two brief anecdotes as examples. Increasingly though, we are seeing substantially more voluminous complaints, ranging from ten to 75 pages, that appear to have been amplified by AI.

The hallmarks of an AI-enhanced complaint, beyond its length, may include:

• advocacy focus – lots of headings each framed as a legal argument or defence;
• the same examples repeated under multiple headings, often with slight differences in either phrasing or detail;
• absence of narrative – “the story” gets buried in the argument; and
• circularity of reasoning – the same points get reframed multiple times, with slightly different verbiage, to elaborate on prior points or as support for additional grounds of complaint.

Work with what you have

As with any other written complaint, when a complaint appears to have received an AI “boost”, the investigator still needs to review the information provided to identify the concerns the employee is raising relative to the organisation’s policies and track the factual information the employee has provided in support of each concern. Factual information may be overstated or misrepresented; that is not unique to AI complaints, but rather lies at the heart of why an investigation is being conducted – to identify what more likely than not occurred.

Investigators cannot disregard a complaint just because it is long, rambling and/or argumentative.  Nor is it advisable to reject it and ask the complainant to revise it to something more digestible. An investigator who puts the complaint aside and relies solely on that which is recounted in an intake interview may thereby overlook relevant information.

In short, the review process is the same; the work is just much harder and more time-consuming with an AI-amplified complaint.

Employee Complaints: When Is Behaviour Considered “Bullying”?

As tensions rise in society at large and virulent language and violence appear to be more prevalent, employees appear increasingly to be holding their managers to higher standards of civility and respect. HR Acuity reported in its Ninth Annual Employee Relations Benchmark Study that 30% of organisations saw some or a significant increase in bullying complaints over the past two years. The Society for Human Resource Management also reports elevated levels of incivility in workplaces and more so in society at large since it instituted an “incivility index” in early 2024.

There is a sliding scale between what may be considered suboptimal or bad management practices, “bullying” and “harassment”. When behaviours prompt an employee complaint, a workplace investigator first needs to determine whether the reported behaviours actually occurred. Then the investigator needs to evaluate where a manager’s conduct falls on the spectrum.

Bullying or bad management?

An employee may dislike receiving feedback that the employee is not meeting performance expectations or workplace conduct standards. However, not every harsh or critical communication by a manager qualifies as “bullying”. Some organisations have detailed policies that provide a definition of bullying with specific examples. Many organisations have less explicit policies against bullying, or none at all. The nature of the behaviour, whether it is targeted, and the reason for the behaviour are often critical to determining whether a manager has crossed the line between appropriate feedback and inappropriate behaviour.

The distinction is reflected in existing legal definitions of “abusive conduct”, which require a certain degree of malevolence or hostility before workplace behaviours will be considered to be “bullying”. Tennessee, currently the only state that legally prohibits abusive conduct by private employers, defines it as “acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment”. California, which requires harassment prevention training to expressly address bullying prevention, defines abusive conduct as that engaged in “with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests”. Both states provide examples that include:

• repeated verbal abuse such as derogatory remarks, insults and epithets;
• threatening, intimidating or humiliating verbal or physical conduct; and
• gratuitously undermining or sabotaging a person’s work performance.

Employers can always define bullying under their own policies more broadly than the state laws. However, when the policies lack a clear definition, these laws provide a helpful framework for investigators tasked with determining whether behaviour reaches the level of bullying or abusive conduct. Sometimes manager behaviour will be found to be inappropriate, sometimes it may be found to be nothing more than critical feedback that an employee did not want to receive, and sometimes the manager may have delivered appropriate feedback but in an inartful or poorly-timed manner that needs improvement but does not rise to the level of a policy violation.

Distinguishing bullying from harassment

Towards the other end of the spectrum, there may be times when a manager’s alleged behaviour is clearly egregious, such that the question for the investigator is whether it should be considered bullying or whether it falls into the category of “harassment”. Some organisations have broad respectful workplace policies that prohibit both harassment and bullying. Under such policies, the egregiousness of the behaviour is determinative of whether a policy has been violated. Who the manager is targeting is a lesser or potentially irrelevant concern.

Other organisations may have differing policies with respect to harassment and bullying, or no prohibition at all with regard to conduct that does not meet its definition of “harassment”. Only behaviour that targets an individual based on a protected characteristic reaches the level of harassment. If a manager is indiscriminate in the manager’s abusive behaviour, or has a personal issue with just a single individual, then behaviours may fall outside the harassment definition and it becomes incumbent upon the investigator to assess who is being targeted.

An investigator might find, for example, that a supervisor yells and makes demeaning comments to individuals across the gender spectrum. That finding alone does not necessarily refute a claim of sexual harassment. Rather, the investigator needs to consider whether the level of hostility is more pronounced or publicly targeted towards women, or if other aggravating factors are shown.

The same is true of harassment claims based on race, age, religion or other protected characteristics. An investigator needs to consider not only who is targeted, but also the severity of the behaviours as directed at different groups. If the behaviour truly is indiscriminate, then prohibitions against bullying may be implicated. If individuals falling within one particular demographic group are uniquely targeted based on a protected characteristic, only then would an investigator find the anti-harassment policy was violated.

Selecting a Workplace Investigator: When to Hire Someone From Outside the Organisation

The People or Human Resources function (HR) is most typically tasked with conducting workplace investigations relating to alleged violations of employee handbook policies or an organisation’s Code of Conduct. In organisations with a larger HR function, some or all of this work may be centralised in a dedicated employee relations team or equal employment opportunity office, while more generalised issues of unfairness or favouritism (not based on any protected characteristic) are often looked into by the HR generalist supporting that business function.

Sometimes, though, an employer is best served by retaining someone from outside the organisation to investigate a workplace concern. Determining when to retain an outside investigator largely depends on four factors: conflicts of interest, sensitivity of the issue, skills and experience, and workload management.

Conflicts of interest

CEOs/business owners, board chairs and other senior leaders can be the subject of an employee complaint reflecting a potential serious policy violation. Or a workplace concern may involve the head of the organisation’s HR, compliance or legal function. In each of those circumstances, the individuals within the organisation who would typically be conducting a workplace investigation are being asked to look into a complaint against the people who ultimately determine the investigator’s pay and future with the organisation. The internal investigator’s independence and ability to conduct an effective investigation may be compromised in that situation.

Even if the internal investigator feels equipped to disregard the underlying power dynamics and objectively gather and evaluate the factual information, there is an overriding appearance of undue influence that may undermine the confidence of the complainant or other parties in the objectivity of the outcome. The complainant may raise concerns about the process to co-workers, and employees may be disinclined to raise concerns internally in the future.

An outside investigator can help an organisation avoid these conflict-of-interest concerns. The outside investigator may be retained by and asked to report directly to the board, outside legal counsel, or a senior leader within the organisation who is above or outside the reporting lines of the parties involved in the matter (such as reporting to the CEO or CFO on a matter involving department heads within HR or legal).

Sensitivity of the issue

Sometimes the nature of the concern raised warrants retaining an outside investigator. For example, matters involving a sexual assault or a domestic violence issue that has carried into the workplace may present particular sensitivities that the internal investigations team is not experienced to handle. A trauma-informed approach is recommended for investigating these types of matters, which involves a focus on open-ended questions, delicate probing, and an appreciation that the complainant’s account may be fragmented or disjointed but still credible. These attributes of a trauma-informed approach are arguably best practices for any workplace investigation, but if the internal team lacks appropriate training in them, then an outside investigator may be a better option to conduct an appropriate investigation.

Skills and experience

Smaller organisations often do not have an internal human resources function. HR support may be provided through a professional employer organisation (PEO) or may be assigned to the business owner, the head of operations or the finance head. Or perhaps an organisation does have one or more internal people responsible for human resources, but their role and experience have primarily focused on recruiting, benefits administration or HR advisory work, with little or no experience conducting workplace investigations. In these situations, leveraging the skills and experience of an outside investigator is helpful. Some organisations will retain an outside investigator for support on an ongoing, as-needed basis, while others may engage an outside investigator on a more ad hoc basis, if a concern has been raised where an investigation seems appropriate.

Workload management

Finally, sometimes an internal HR or investigations team just has too much on its plate or is short of one or more staff and needs additional resources on an interim basis. In these situations, the outside investigator still offers the benefit of more independent accountability and perspective, but primarily the investigator’s value is in being able to “hit the ground running” and offer support.

Selecting a Workplace Investigator: Should the Investigator Look Like the Complainant?

Where legally protected characteristics of race, gender, ethnicity or religion are central to an employee’s complaint, some organisations may seek an investigator who is perceived to align with the same demographic group as the complainant. Sometimes the objective is to find someone who can understand the lived experience of the complainant; other times the concern is about the optics of the engagement. In either case, the approach starts from a biased premise that may do a disservice to the respondent and does not assure an effective investigation.

The bias inherent in matching for race/ethnicity/gender/etc

When an organisation chooses an investigator because of the investigator’s race, ethnicity, gender or other protected characteristic, that is discrimination. Similarly, if the organisation is using race or ethnicity as a proxy for “lived experience”, then discriminatory bias is underlying the selection.

Lived experience can be relevant and is not inherently discriminatory, but no organisation can know the lived experience of an investigator from the information typically available on a website – a photograph, the person’s name, or even most professional biographical descriptions. Usually that is the only information available when an organisation looks to hire an outside investigator. Even when selecting the appropriate in-house person to assign to an investigation, the organisation may not have much additional information on the personal lives of the employees who are being considered for that assignment.

Just because a complainant is a person of colour or a woman, and an investigator is not, does not mean the investigator is a bad fit or less likely to give due consideration to the concern being raised. The inverse is similarly true, that just because a complainant is white or a man, and an investigator is not, does not mean the investigator is a bad fit or less likely to give due consideration to the concern being raised.

For starters, not everyone who identifies as being from the same racial or ethnic demographic group has had the same lived experience. There may be some commonalities, but those lived experiences can be quite different, particularly depending on factors like socioeconomic status, geographic location, education, family dynamics and much more, both in childhood and as an adult. Even if our skin colour aligns, we are not all cookie-cutter images of one another. Therefore, the premise that just because an investigator looks like the complainant, the investigator will understand the complainant’s lived experience, is flawed.

How does the selection impact the respondent?

A workplace investigation should not be a “gotcha” experience. Most organisations initiate a workplace investigation so they can understand what actually happened and/or whether any policies were violated. Sometimes the complaint is substantiated, and the organisation needs to take disciplinary or remedial action with respect to one or more of the individuals accused of inappropriate conduct (the “respondents”).

Other times, though, the investigator may ultimately conclude there was no policy violation. Sometimes this is based on finding that the reported behaviours did not occur. More often, the finding is that some words may have been said or a particular sequence of events may have occurred, but when considered in a broader context of other comments and actions, the specific behaviour may be found not to violate the organisation’s policies. In those latter situations, the investigation may reveal bad management practices or insensitive comments by a co-worker that present grounds for a complaint and opportunities for improvement, even though the behaviour may not be substantiated as violating any policy.

The respondent should receive the same courtesy of due consideration as is afforded to a complainant. If an investigator is chosen because the investigator is of the same race, ethnicity or gender as the complainant, what does that signal to the respondent? Does the process feel fair and unbiased under those circumstances?

Matching ethnicity does not correlate with an effective investigation

The key to an effective investigation does not derive from demographics, or even from lived experience, but rather from the ability to create an environment in which the complainant, respondent and every other interviewee is given time and space to speak and a forum in which to feel heard. An investigator can provide that by keeping an open mind, focusing attention on the interviewee, making eye contact, speaking little and listening much, and periodically paraphrasing the speaker. The objective at all times should be to gather information, and to come from a position of inquiry, not affirmation or accusation.

Lived experience can at times make us more attuned to particular terminology or behaviours, so that we think to ask about them. Other times, though, lived experience can lead to overfamiliarity with particular terminology or situations, such that we might be less inclined to inquire further about them and thereby make assumptions as to meaning or import that may be mistaken.

An effective investigator consistently should be gaining clarity as to meaning, often by literally asking the interviewee what the interviewee means by a particular word or phrase, why the interviewee made a particular comment, or what something looked, sounded or felt like. The investigator should not accept broad generalisations or loaded phrases (such as “harassment”, “hostile work environment”, “toxic” or “gaslighting”) without also seeking specific examples of the behaviour being referenced. No racial, ethnic or other demographic group has greater knowledge or facility with these techniques – they are the skills that an effective investigator has acquired with time and experience.

Selecting a Workplace Investigator: What Should an Organisation Look for?

Experience, skill, availability and an open mindset should be key considerations when selecting a workplace investigator. When interviewing external investigators, ask them about their investigation process – they should be able to describe a methodology for approaching a workplace investigation. No two workplace investigations are ever quite the same, but an effective investigator will have a toolkit of techniques to approach the investigation and the humility, curiosity and drive to regularly reflect on the issues raised and the information gathered so as to reach conclusions that are grounded in a well-supported analysis of all parties’ perspectives, documents submitted and other relevant information.