The two failures in workplace misconduct investigations are predictable: the wrong person investigates, and the investigation gets entangled with the employment decision. Both are avoidable, and both are usually decided before anyone has looked at a single fact, by who is asked to handle it.
Waxman Litigation conducts and advises on investigations for companies and their boards. Seth B. Waxman spent 13 years as an Assistant United States Attorney in the District of Columbia, roughly eight of them on fraud and public corruption.
Who investigates
The person complained about must not control the investigation, and neither should their reporting line. Where the allegation concerns senior management, independence from management altogether becomes the question a regulator, a court, or a journalist will ask first.
Interviews
Employees should be told plainly who the lawyer acts for: the company. That is not a formality; it protects the investigation and the individual. And there is a hard limit on what may be said to a witness:
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to— (1) influence, delay, or prevent the testimony of any person in an official proceeding; (2) cause or induce any person to— (A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding; (C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (D) be absent from an official proceeding to which such person has been summoned by legal process; or (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of t
Employees may be told they are free to consult their own counsel. Being told what to say is different.
Keep the finding separate from the decision
An investigation establishes facts. What the company then does, discipline, termination, remediation, disclosure, is a separate decision taken on those facts. Collapsing the two produces investigations that look predetermined, which is precisely the criticism that later matters.
Where the complainant is also the source of the allegation, retaliation exposure attaches independently. See whistleblower complaints and retaliation risk.
Records
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. (Added Pub. L. 107–204, title VIII, § 802(a) , July 30, 2002 , 116 Stat. 800 .) U.S. Code Toolbox Law about… Articles from Wex Table of Popular Names Parallel Table of Authorities How current is this? Accessibility About LII Contact us Advertise here Help Terms of use Privacy
What federal exposure can a workplace investigation create?
An internal investigation can create federal exposure of its own if documents are lost or a witness is steered. These provisions apply to the company’s own conduct during the investigation, independent of whatever the investigation is about.
| Provision | Official heading | What it carries |
|---|---|---|
| 18 U.S.C. § 1512 | Tampering with a witness, victim, or an informant | Up to 20 years, depending on the conduct charged |
| 18 U.S.C. § 1519 | Destruction, alteration, or falsification of records in Federal investigations | 20 years |
| 31 U.S.C. § 3730 | Civil actions for false claims | Contains the FCA’s protection for an employee who reports — retaliation is separately actionable |
Frequently asked questions
Can HR run the investigation?
HR can often run a routine matter. Where the allegation involves senior management or potential criminal conduct, independence becomes the issue.
Must we tell the employee they are being investigated?
That is a judgment affected by the nature of the allegation and the risk to evidence. Take advice.
Can we terminate before finishing?
Doing so tends to make the investigation look predetermined and can create separate exposure, particularly where the person also complained.
Is the investigation privileged?
It depends how it was structured at the outset — who instructed the investigator, and for what purpose.
Why is the interview stage where these investigations go wrong?
Because how the interview is conducted can create liability the original complaint never would have. Federal law reaches a person who knowingly uses intimidation, threatens, or corruptly persuades another with intent to influence testimony in an official proceeding, and an interview run as pressure can look exactly like that when it is examined later. See 18 U.S.C. § 1512(b).
When does an employee’s protection against retaliation begin?
Earlier than most employers assume, and well before anything is filed. The protection covers lawful acts done in furtherance of an action, and also other efforts to stop a violation — which can include raising the concern internally. See 31 U.S.C. § 3730(h)(1).
Where is a retaliation claim brought, and by whom?
The individual brings it in their own name, separately from whatever they reported. The entitlement to relief belongs to the employee, contractor or agent, so a retaliation claim can go ahead even if the conduct they reported turns out not to have been a violation at all. See 31 U.S.C. § 3730(h)(1).
How should the finding be kept separate from the decision?
Have different people do them, and record them separately. The investigator establishes what happened; someone else takes the employment decision on that record. That separation is what makes the decision defensible later, without putting the investigator in the position of defending an outcome they did not choose.
What does a retaliation finding cost an employer?
Sources and legal authorities
General information, not legal advice. Scope, conduct and privilege decisions turn on the specific facts and should be taken with counsel before the first interview.
Related: Internal Investigations · Whistleblower Complaints & Retaliation Risk · Employee Fraud & Embezzlement · White-Collar Defense. Call (301) 901-3109 or use the contact page.