Common Areas Of Workplace Complaints And Investigations

3/6/2026

Investigations in workplaces are triggered by a complaint, allegation, a suspicion of misconduct, or any number of other reasons.  Some of the more common types of Workplace Investigations include:

• Harassment
• Discrimination
• Safety
• Theft, fraud, or misappropriation of resources
• Misconduct
• Regulatory agency inquiry

Harassment Investigations A standardized definition of harassment is "to trouble persistently or incessantly". Harass is a verb that implies systematic persecution by repeated annoyances, threats, or demands.  The word harass covers a wide range of conduct that is perceived by the receiver of the conduct to be offensive and unwelcome. Whatever the reason – or perception - harassment in the workplace is governed by a multitude of federal and state laws.  It is important to remember to use the meaning of the word as it is defined by the applicable statute and by the workplace policy. While not a desired set of circumstances, not all workplace conduct that is offensive to an employee will be illegal or even prohibited by workplace policy. Implementing clear human resources compliance protocols is essential here. It is important to understand that discrimination and harassment are two different things. They can both occur at the same time; just as any other combination or multitude of differing allegations can be brought up simultaneously in a complaint. An investigator needs to be clear on the allegations that they are investigating to uncover all the facts.

Example: Annette made a complaint that she is being paid less than several men in her same position with comparable resumes. While she is raising an allegation of discrimination, if an investigator investigates the complaint as harassment, the investigator may come to a faulty finding of an unfounded allegation. Even if Annette's complaint of being paid less is true, there were never any allegations of harassment raised. It was an allegation of discrimination the investigator should have been looking into.

Discrimination Investigations To "discriminate" means "to make a clear distinction; distinguish". However, when used in reference to an employment practice, "discrimination" is usually in reference to an unlawful act under various federal laws.  Discrimination indicates that an individual has been singled out because of his or her protected class. A basic example of discrimination would be in denying a female employee a promotion to a management position because the boss "wants a guy" in the job. This type of situation is a core focus for an HR Generalist. However, there are many classes of human attributes that differing federal, state, and even local statues have protected and thereby made illegal to have negative employment decisions made about employees just because of the fact that the employee possesses the protected attributes. The majority of these attributes persons could not change about themselves even if they wanted to (for example gender, race or age).  The attributes that are protected by law are called protected classes. What the employee is protected from is having adverse employment decisions made in regards to them because of the fact that they are the protected attribute. Being in a protected class does not mean a person is protected from having any adverse employment decision made regarding them (for example, termination for poor performance).  For example, a woman can be terminated for poor job performance. However, it is unlawful to terminate the woman because of her sex. This is where the investigator may be required to determine if the woman was terminated because of her sex (unlawful) or terminated for her poor performance (lawful). This often involves reviewing ADA or PWFA protections if health or pregnancy are factors. An employee may even challenge an employer's positive action such as granting a promotion to an employee who has performed admirably.  For example, employee Richard may claim he was denied a chance at the promotion because of his age, a class that is protected by the law. This is another instance where an investigator must determine the meritorious facts of the situation.  Safety Investigations Safety investigations typically involve people as well as equipment. Safety investigations require immediate responses. In the case of unsafe working condition(s), an employer wants to rectify the situation immediately.  The investigator needs to ascertain if it was the equipment or the person using the equipment that caused the accident as quickly as possible.  In the case of safety accidents, this must be determined before anyone else can get hurt. If an investigator cannot themselves assess the integrity of the equipment involved, it is imperative to immediately seek assistance from someone who does know the equipment.  Safety investigations - by their very nature - require the investigator to do a site visit to accurately assess the situation in totality.  A safety investigator needs to immediately collect any physical evidence that is available at the site of the accident and assess the working site and working conditions.  A safety investigator should always use a camera at the site visit to take dated/time stamped pictures of the work site, the equipment, and any other pertinent physical facts, while realizing that any documentation gathered can and will be used against the company if there was wrongdoing.  If a visit is not immediately performed, machinery can be retooled, evidence can disappear, witnesses forget information, and as a result, critical facts can be misinterpreted or totally missed.  Theft, Fraud, or Misappropriation of Resources Investigations When it comes to investigations involving theft, fraud, or misappropriation of resources, there is a good saying to remember: "Never accuse anyone of stealing". First, it generally never performs well as a strategy in this type of investigation to simply probe for the facts. People involved in these alleged losses generally don't eagerly admit wrongdoing. In the real world there is often no resolution for these types of losses except through secondary policies such as violating a documented shortage policy, property policy, or a cash handling protocol.  Secondly, accusing someone of stealing is also fraught with legal liability. This may incur more cost in legal bills than loss from the alleged theft being investigated.  Such investigations are closer in strategy to a safety investigation in that immediate response, site visits, singular and timely witness statements, diagrams, and the collection of physical evidence are crucial.  Before an investigator talks to an accused it is imperative that they have gathered, scrutinized, and understand all the evidence that is at their disposal and are well organized in their questioning for two reasons:

• Investigators are better positioned to uncover and expose discrepancies which can turn out to be the one fact they need to expose a lie or material misrepresentation or even get an admission.
• Investigators are less likely to get angry or excited and make a regretful "shoot from the hip" remark.

Misconduct Investigations Misconduct investigations cover a myriad of allegations ranging from general misconduct to performance problems.  Misconduct investigations can be complicated because there is usually more than a single element that needs to be investigated. Therefore, it is imperative that an investigator be very organized in separating and investigating each allegation. Remember that just because one allegation is unfounded (or founded) doesn't mean the other allegations will be as well.  Often misconduct charges are lodged by an employee against an employer because their manager is trying to handle the employee's performance problem. However, these charges are often lodged because the manager has not effectively managed the performance of the employee until there is a problem, which establishes the ideal circumstances where the employee can lodge a retaliation complaint in response.  Additionally, if a manager has not managed the performance of an employee for years, the employee may truly be surprised by the charges and would beg the question "why me and why now?" To further complicate the issue there is often documentation to the contrary that the employee "met expectations" for the years prior. Such discrepancies need to be investigated.  Charges of misconduct can also be levied against a manager suspected of wrong doing. It is important to remember that in the case of an unfounded allegation against a manager by an employee who did not have all the information and simply made an error, is not the same as a malicious complaint, which is important for the purpose of avoiding charges of retaliation.  Public Sector Investigations Public sector employees can have property rights to their jobs and even some protected speech rights that private sector employees may not have. Comparatively, public sector employees are also protected more often by unions than employees in the private sector.  Additionally, sometimes public sector agency guidelines have required disclosures that need to be made to an employee before beginning an interview. Such disclosures in a union setting may even be contractual in regards to an employee's right to know the substance of the charges.

Example: A police department may have either statutory and/or contractual obligations that require officers involved in an investigation to have a right to be told of their right to have counsel present at certain types of interviews.

Some agencies require an employee to be educated to their rights under the law when making a charge of discrimination.  Last, public sector agencies may also follow a chain of command in communications that are often not observed in the private sector.

Example: A public sector employer may have a practice or protocol of sending a prerequisite courtesy letter to a manager communicating that there is an investigation occurring in their department.

Regulatory Agency Inquiry A regulatory agency investigation generally occurs for one of two reasons:

• The employer launches their own investigation to "put their house in order" before they come to the attention of a regulatory agency. For example, an employer might audit their Affirmative Action plan before they either have a complaint or come to the attention of an auditor through other means
• An employee launches a charge with a regulatory agency

When an employer launches their own investigation and wants to make good faith efforts to fix what they have determined may be out of compliance, it is not necessary to leave voluminous documentation or checklists of mistakes that could be used as evidence against them later in an adversarial situation. Most of the time, the employer can just address what is wrong, put processes in place to avoid such circumstances in the future, attempt to redress past wrongs, and move on.  In the case where an employee launches a charge with a regulatory agency, it is of utmost importance that an employee not be retaliated against for making such a regulatory agency complaint. However, it can be difficult to avoid the appearance of retaliation if the employee is still employed and there have been unaddressed and/or undocumented performance problems with that employee in the past. In these scenarios, maintaining FMLA or disability leave documentation properly is critical.  Remember that regulatory agency exists to defend the employee's rights and until there is an investigation it is not apparent if those rights have been violated or not. The agency's purpose does not include an employer's ineffective management of their employees; if an employer is not managing their employees an internal leadership issue exists.  In this situation an employer should:

• Contact competent legal counsel
• Contact the investigator at the regulatory agency
• Investigate the situation
• Develop an appropriate legal strategy with their legal counsel
• Make good faith attempts to address any wrongdoing discovered
• Take appropriate steps to avoid such situations in the future