Howard Levitt: When workplace investigations become delayed decision-making

An employee is accused of misconduct. Management’s first instinct is no longer to determine what happened and then take the appropriate action. It is to call HR, then outside counsel, then an investigator and begin a process that consumes weeks or months.

Everyone is terrified of making a mistake. So they investigate. Then investigate the investigation. Then ask whether they should interview another witness, review another email or give the employee another opportunity to explain conduct that is already substantially established.

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This is not responsible risk management. It is management paralysis in the guise of due process, and I have seen it become increasingly and quickly widespread. It is expensive, unnecessary and counterproductive.

There is nothing wrong with a proper workplace investigation. Serious allegations of harassment, discrimination, violence or dishonesty deserve serious scrutiny. Employers need reliable facts before taking disciplinary action.

But an investigation is supposed to assist an employer in making a decision. It is becoming instead a substitute for making one.

Employers need to remember something that seems to have been forgotten: they run a business. They are not required to conduct a trial every time they receive a complaint. They do not need to eliminate every conceivable uncertainty. And they do not need to spend tens of thousands of dollars establishing facts that are already reasonably clear.

If the facts are genuinely disputed, investigate. If important witnesses provide materially different accounts, investigate. If the allegation is serious and the consequences significant, investigate more thoroughly. But once the employer has the material facts, they should stop. More often than not, the relevant facts are evident from the outset.

Not only is there no prize for the longest investigation, but excessive investigation actually damages the employer’s legal position.