Pete Wright:
Welcome to Human Solutions from AIM HR Solutions on TruStory FM. I’m Pete Wright. Every HR professional knows the feeling. A complaint lands on your desk, and before you’ve even finished reading it, you’re aware that whatever you do next could be read back to you in a deposition. Workplace investigations are where good intentions collide with real legal exposure — where the instinct to keep the peace, move quickly, or protect a valued employee is often the exact instinct that gets an employer into trouble.

This week, our own Sarah Piscatelli and Tom Jones join me to talk about how to do this well: when a complaint actually requires an investigation, who should be holding the pen, and the subtle mistakes that could turn a manageable problem into a lawsuit. If you’ve ever wondered whether you’re overreacting — or, worse, underreacting — this one’s for you.

Tom, Sarah, welcome, welcome. This is a great conversation. I don’t know how we’re going to do it in a half hour, but you have told me with great confidence that you can do it. Let’s get started. First of all, why are we talking about this today? Workplace investigations are a common, challenging issue employers face. They’re part of the workaday life of an HR professional, but for some reason this has come up for us in this forum today. Why are we doing this? Who would like to start?

Sarah Piscatelli:
Well, complaints happen at work. You bring a whole bunch of people together into a confined workspace, and there are going to be complaints. They’ll arise over maybe just work styles or something like that in the beginning, but then it transforms into something more profound, and HR has to get involved and become part of that investigation. They have to determine — well, first off, whether or not there should be an investigation. And if not, how to let it go. But if it does, how will they do that investigation?

Tom Jones:
And there are also some laws that actually require you to investigate. So if you receive a complaint, or knew or should have known of some harassment or discrimination going on, then you do have a legal obligation to investigate that situation.

Pete Wright:
Well, Sarah, that was going to be my next question. What are the types of complaints that we are putting in the complaint bucket?

Tom Jones:
Sure, I’ll take that. It’s employee complaints. Sometimes it’s harassment situations, very often interpersonal conflict, which could also possibly be harassment. There are complaints of employee misconduct. And also safety — workplace accidents and safety incidents. Those also need to be investigated. There can be other things: breaches of confidentiality, somebody misusing company information or company property.

Tom Jones:
Sarah and I were talking the other day — God knows what else could happen. Some of these situations are completely… well, we know what Sarah just went through. Those are many of the main ones you hear about, but there could be some other surprise that comes out of nowhere.

Pete Wright:
Okay, what investigation-related questions do you find employers are asking most often right now? As people who have picked up the phone to answer questions on the helpline, what are you hearing?

Sarah Piscatelli:
Do I have to do it?

Tom Jones:
Do I have to investigate?

Sarah Piscatelli:
Right.

Tom Jones:
Yes.

Sarah Piscatelli:
“How bad is this?” And oftentimes the HR person wants someone to talk it over with — to talk it out and get a sounding board and say, “Gee, this is what happened, this is what happened.” And our job on the helpline, wherever it might be, is to be kind of a probing questioner back, asking: Who was involved? Who said what? Who did what? When did it occur? How frequently did it occur? And so you’re truly trying to give them as much guidance as possible as to whether they should move forward with an investigation or not.

Pete Wright:
That absolutely is our first major bucket — the “do we actually need to investigate this?” And I think there are some fine-line questions that may be based on assumptions employers make, that they potentially have more agency in the situation than they think. And to Sarah’s comment earlier: the employee is asking us not to do anything. Do we still need to investigate? In what circumstance do we not really have a choice?

Tom Jones:
Very few. Some investigations are pretty limited because of the fact situation — it might mean talking to one or two people. But for most employee complaints, yes, an investigation should follow, to at least look into it. You can never guarantee full confidentiality, because the investigation requires you to talk to people, so some information will be shared.

Pete Wright:
There’s some nuance in this bucket of questions. For example, what if it’s anonymous — somebody complains anonymously? What if there’s no proof? What if nobody formally complained? And finally, the one that I think exercises the most potential for underreacting judgment: what if it’s just workplace drama?

Sarah Piscatelli:
Funny, we were talking about this yesterday.

Tom Jones:
We were, yes.

Sarah Piscatelli:
If it’s anonymous, ultimately you can try to look into it to the extent possible, but if you don’t have the key background evidence from the person who filed the complaint — this occurred on that date, this time, this place, they did this thing — it makes it much, much harder. An HR person can document to the extent possible. They may want to tell the supervisor in that department, “Hey, pay attention, because something may be going on in your department. This came through, so maybe people are unhappy.” But it’s hard when no one gives background details and won’t give you a point of contact to go back to and say, “I’d like to get more information about what you’re saying.”

Pete Wright:
Sure, sure.

Sarah Piscatelli:
No proof.

Pete Wright:
What about the proof situation? How do you handle “there’s no proof”?

Tom Jones:
That happens more frequently than we’d like, where it’s the classic he-said-she-said, and you’re having to assess credibility. You can end up with an inconclusive investigation. Generally there are steps you can take. I’m putting this in a harassment-type context, where it’s one employee and another, and you may need to separate them — there might be steps you need to take so they no longer have to work together, if that’s possible and if the person who made the report agrees to it. Generally you can’t just move that person away; that would be considered retaliation for bringing the complaint. So there can be things like that that you need to do.

You might do some retraining of managers or all employees on whatever the issue is. And you might need to revise policies — go back and take a look, because people have different understandings of a certain policy and they behaved a certain way. There are steps you can take that aren’t necessarily discipline against somebody for wrongdoing. So it doesn’t necessarily end there.

Pete Wright:
I notice neither of you have jumped on the last one. What if it’s just workplace drama? Why is it that in my head I am inflating that one as the riskiest?

Sarah Piscatelli:
People may presume there is more there than actually is. As an HR person, you may presume this is a sexual harassment case, or a workplace bullying case, or whatever. It may just be exactly what you’re saying — drama. And because it’s hard to distinguish what exactly is drama or not, it may mean you end up having to talk to a few people before they all say, “Wait, it’s not really that big a deal. He’s always like that. We’ve learned to live with it. It’s annoying, but we’ve learned to live with it.” Or, “She always complains,” or whatever it might be. And so you’re trying to parse out whether that’s a real violation of company policy, a violation of the law, or just workplace drama.

Pete Wright:
This gets to one of the things we’ve talked about a number of times on this show, which is the question of what and how much training line or department supervisors need to manage departmental — we’ll say — drama effectively, and what our expectations are of them to suss out what’s drama and what needs to be escalated to HR. Any particular guidance on supervisory training in this regard?

Tom Jones:
Yeah, my recommendation would be to reach out to HR early on, because this not only festers — the conflict continues, the workplace drama continues — it affects everybody in the workplace, even those who aren’t involved in it. The bystanders are facing the backlash. So get HR involved early; you can have a conversation with the people who are involved and deal with it and head it off.

But you also have to make sure that managers are aware. Don’t just go in and say, “Hey, guys…” Try to deal with it as it pops up. If it’s a persistent problem, you do have to address it as such, and be a little more methodical about getting ahead of it instead of just tamping it down every time these two get into a beef.

Tom Jones:
Sarah made a comment before about the whole “knew or should have known” standard. A manager can’t be willfully ignorant. They can’t sit and say, “Well, no one’s really said it was harassment, so I’m not going to worry about it.” That’s no good, because it may blossom into harassment, it may blossom into another violation of company policy. So you really want to make sure your managers and supervisors are the first line. They have to be alert to all this stuff. Even though it isn’t, quote-unquote, their regular job — in the sense of getting production out the door — it’s a part of the job too.

Pete Wright:
And it’s fundamentally a respectful part of the job. You’re doing a respect to the conflict by addressing it in a proper fashion. And it is often disrespectful — how many young managers have I been through who have said, “There’s conflict, they just need to grow up”? That is a fundamentally disrespectful way to handle a workplace conflict.

Sarah Piscatelli:
Yes, exactly right.

Pete Wright:
And so there are ways, but it does get to our next bucket of common employer questions: who should handle the investigation? Now, you probably don’t have a crusty old retired P.I. from the force just wandering around the cubes.

Sarah Piscatelli:
Should have a rumpled hat on.

Pete Wright:
Yeah, right. So who should handle the investigation? We have lots of questions around: Can HR handle this internally? When do you bring in a third party to audit the conflict? How do you move through some of these bigger questions?

Sarah Piscatelli:
Classic lawyer answer. Go ahead.

Tom Jones:
It depends.

Sarah Piscatelli:
It depends, right?

Pete Wright:
Yeah, right.

Sarah Piscatelli:
I think in the majority of cases, HR can handle it internally. Most investigations, they can. If it’s a very high-ranking member of the staff — if it’s the CEO — certainly you’d like to go outside. Nobody’s comfortable investigating the boss, so you’d look for an outside investigator.

A good idea, too, early on — depending on the seriousness of the complaint — is to have an employment attorney to reach out to. That’s somebody who could conduct the investigation, but in most cases they will want somebody else to be the fact finder, because the attorney’s role is not the fact finder. They’re an advocate for their client, the company. So they might say, “I’ll find somebody who can do the investigation.” We conduct investigations — Tom and I do, here at AIM. Find an outside party that can move forward with the investigation; they act as the fact finder. Your lawyer can guide you with that. But generally those are the two main options: internal or external. And if external, who? An attorney could guide you that way if you don’t know where to go.

Tom Jones:
Exactly. And reputation’s an issue too — company reputation, in terms of the need to get the outside, objective person. That may be what we need in a particular case because things are so stressful within, the media’s become aware of it, or other factors are involved, and so the company really needs to both deal with the problem and protect its image with the greater public.

Tom Jones:
In some very small workforces, if it’s almost like everybody who works there is somehow involved in the issue, then you really need to get an outside investigator.

Pete Wright:
Yeah, when neutrality is compromised around almost every corner. How do you effectively guide employees when you have brought in the company lawyers during an investigation? At some point, employees involved in a conflict may need to bring in their own counsel.

Sarah Piscatelli:
Usually they can’t bring counsel onto the property. They may go get their own lawyer to go to court or go to the MCAD or something like that, but that’s usually after whatever effort they may have made internally is long come and gone.

Pete Wright:
Okay, fair. It does lead to our next bucket of questions: what makes investigations so difficult? Questions like — what if employees tell different stories? A classic investigation puzzle. Can employees refuse to participate? I find that a fascinating puzzle. Can employers promise confidentiality — a challenge we’ve talked about a number of times in this forum. What if employees start talking about the investigation to one another? How do you handle what makes investigations so difficult, Sarah?

Tom Jones:
Yeah, I think you can assume that employees are going to talk about it. Even though at the end of every interview I’ll say, “It’s better to keep this confidential — we’ll ask that you keep this discussion confidential,” there are going to be people who talk about it. They just do. People talk. People talk in every workplace.

Sarah Piscatelli:
Causing workplace trauma.

Pete Wright:
Yeah, it’s drama all the way down, guys.

Sarah Piscatelli:
Possibly.

Tom Jones:
And you are going to have two different stories.

Sarah Piscatelli:
Exactly.

Pete Wright:
Yeah.

Tom Jones:
Very often, in investigations I’ve done, there’s a group of witnesses that lines up behind one person and another group lines up behind another, and there’s just no in-between. It’s very hard to sort out facts when you have a lot of support for both versions of the story. You named a number of points, Pete, and I’m not sure I’m hitting them.

Pete Wright:
I did. Here’s one: can employees refuse to participate?

Tom Jones:
I would say that’s a condition of employment, so they would be subject to discipline if they refused. And that’s actually a good reminder that that should probably be in a policy or a handbook somewhere — saying that, as part of your employment, you have to participate and cooperate with any investigation. And it might depend on how important they are, too. If you have somebody who doesn’t want to participate and they’re not that important to it, you can still complete the investigation without them. But if they’re a party to it, then it’s a different story — then you’re really in trouble.

Tom Jones:
And Sarah alluded to it earlier about confidentiality. You can promise it to a limited extent, obviously, but ultimately you’re going to have to confront somebody who’s going to talk about what happened. If it’s only a he-said-she-said — say there are only two people involved — it may become obvious, once you confront the alleged wrongdoer, exactly who said something about him or her. So it’s very hard to guarantee confidentiality. You can promise it to the extent possible.

Pete Wright:
Sure. This is one of those things where an expectation of confidentiality — abdicating responsibility and stepping out of the discussion — that’s a choice. That is participation; implicit participation, by not participating.

And it leads us to our next big bucket, which is a checklist of the big mistakes employers make when leading an investigation. I wonder if you could start this part of our conversation by giving me a tutorial, for those listening, on how to become a good investigator from an HR perspective. This is not a natural skill that you just have because you went and got your SHRM certification. It takes skill and time and patience and practice to learn how to do this. I would love to know, from both of your perspectives: how can we help the people listening to this conversation level up their own skills as investigators? Where do you start?

Sarah Piscatelli:
I’ll take this one — and you can chime in if I forget anything. When you’re tasked with an investigation, first, the person giving it to you is going to frame it a certain way, but you keep a very open mind. Sometimes, even if they’re trying to be very neutral and not make judgments, you do get the sense of who they think is the wrongdoer, what they think is wrong, and so on. But keep an open mind.

And do some planning in the beginning. Figure out who your witnesses are. Is there any documentation I’m going to need? What are the company policies that this behavior violates? Take a little bit of time to plan the investigation — knowing full well that your plan is going to take a left turn somewhere. There’ll be a plot twist, or new information, and you’ll need to reinterview somebody. It could turn out to be an entirely different issue once you go along.

Generally, what I do is first talk to the complainant, the person who made the report. Then, if it’s accusing somebody of something, I would talk to the accused, then talk to witnesses. That often leads to having to go back to square one and talk to the two involved parties again, because you’re going to learn more from the witnesses, which sends you back to the beginning. And then you take good notes, of course. I don’t use the AI note-takers, but I suppose those would be okay — or even a recording. Tom has used recordings before to assist.

Tom Jones:
With consent.

Sarah Piscatelli:
Yes, with consent. I would say, “Pete, I’m about to record this — do you agree with that?” And you nod yes or say yes, and then I can rely on that.

Pete Wright:
Yes. Okay.

Sarah Piscatelli:
And then the end result — back to the most basic thing — is that you’re a fact finder. You’re not trying to make a case for the employer or anybody involved. You really do have to keep the blinders on there. Even if you’ve reached your own conclusions as you go along, keep an open mind all the way through. Anything I’m missing?

Pete Wright:
Sarah, that is the gem of this conversation — to remind people that you’re not building a case, you’re just finding facts. Because you’re not an attorney, you’re not an officer of the court.

Sarah Piscatelli:
Back to your other point about how oftentimes HR makes a mistake — waits too long to act. Or it may not be HR, maybe a supervisor. What’s the issue? It festers longer than it should. They got a complaint but they never acted on it, never took steps to correct it early on. So that could be a problem — failing to handle whatever comes in seriously, not giving someone credit.

Tom Jones:
I’m thinking of the case we had here in the Boston area — the car dealership. Pretty severe sexual harassment. It was reported to HR, and generally everybody knew it was going on. The woman filed a claim, they ended up in court, and the company was assessed a half-million dollars in punitive damages based on mistakes in the investigation. First, nobody went to investigate — the supervisor had an obligation to initiate that, knew what was going on, and didn’t do so. And then, even during the investigation, they really didn’t conduct a thorough investigation: didn’t talk to parties the complainant would have liked, who supported her; didn’t do the documentation. So that was a half-million dollars it cost them for not conducting a timely and effective investigation.

Pete Wright:
I want to change gears just a bit — a related vector on this idea of retaliation concerns. What are the practical concerns of retaliation after investigations end? What is your experience in practice of what this actually looks like?

Tom Jones:
The antidiscrimination agency in Massachusetts emphasized that retaliation is the number one issue they see. A good example: a case will come in on sexual harassment and the company will win — they’ll prevail and show it wasn’t harassment. But then they’ll do something to make the employee’s life difficult at work: cut them out of meetings, demote them, change their hours, deny them overtime. And all of a sudden, now there’s a retaliation claim. On the federal level as well, with the EEOC, more than fifty percent of all cases have some element of retaliation to them. And oftentimes the company walked right into that, because they weren’t paying attention, or the manager’s angry that he or she was named in a lawsuit and now wants to get back at the employee who won and is back at the workplace. So the potential is there for a disaster for the company.

Sarah Piscatelli:
Even if it turns out — as in the example you gave — that the discrimination or harassment claim was without merit… well, it couldn’t be proven. That doesn’t mean it’s without merit, but it couldn’t actually be proven. Maybe the company thinks it’s on solid ground — “We can do what we want.” But that retaliation looms over it regardless, because it is a protected right to bring the complaint in the first place.

Pete Wright:
Wow. All right, we’ve got a question in the chat room that leads to another one I have. The question in the chat room: is recording conversations without consent legal in Massachusetts?

Tom Jones:
No. It’s a two-party consent state, so you have to have the consent of both parties.

Sarah Piscatelli:
I think we’re, like, the tenth or twelfth state in the country where you have to have both parties’ consent. Some states are single-party consent, but we’re not.

Pete Wright:
Okay, so take care of that. It does lead to my last question here. I mean, are we allowed to have a conversation anymore without bringing up AI? Employees are recording conversations on their phones sometimes, without two-party consent, and HR teams are, as you said, Sarah, using AI note-takers in interviews. How do you see this kind of technology changing the documentation game, for better or worse?

Tom Jones:
Yeah, I can see that. There was a case in Boston — do you remember that? — where it ended up that one employee had recorded another one berating him or her. I can’t remember the case, but that ended up being admissible in court. In general that would not be allowed in Massachusetts, because it was a secret recording, but it somehow got admitted as part of the case.

I think the company’s policies can address a lot of that. I see more and more policies about restricting use of cameras and use of recording — “Just don’t do it, it is not allowed here,” or “not allowed without approval of your manager.” So I think it’s a good idea to have policies that address that, because otherwise everybody will be running around recording each other.

Sarah Piscatelli:
One other thing to worry about, maybe up front, is to say: “Okay, everyone, telephones out on the table. Nobody can record this. This is a confidential internal investigation being run by the company, therefore no one may record it.” At least put that as a prefatory remark out there, and hope it makes a difference.

Pete Wright:
I’ll tell you what — this is one of those things, because the technology is becoming so invisible. Little AI fobs and things recording all the time. As Stacy’s commenting in the chat room right now, now you have Meta glasses that record. They record, sometimes with a little notification light, but that notification light is sometimes hard to see. So it is important, from a policy standpoint, from a training and development standpoint, to let people know what is — and could be — recording at any time. I can start a recording on my watch completely invisibly at this point, and no one would know.

Sarah Piscatelli:
Well, you see it on your phones nowadays too.

Pete Wright:
Of course, yeah.

Sarah Piscatelli:
You make a call, and then you tap the button recording the call.

Pete Wright:
Right, right. So — important awareness. And it is a segue to next month’s recording, a bit of housekeeping. We are going to have Terry Cook and Kyle Pardo back with us, and we’re talking about AI. We have some specific questions built around this, but we want to give you a plug if you’re listening today. Mark your calendars, and be on the lookout for those notifications for next month.

Now that I brought it up, I should probably have the exact date. It is going to be on July 14th — our luncheon webinar on AI with Kyle and Terry. It’s going to be great. We love having this conversation, and it’s only getting more interesting as the days go by.

Before we jump out of here: remember, AIM HR Solutions is here to support employers with just about anything HR-related — whether you need expert guidance, employee training, recruiting support, or handbook review. If you want to fancy up a new policy around cameras and recording, we can help you review it and make sure that policy is sound. Maybe you just need an extra hand with your HR function. Our entire team is here to help. And when your questions can’t wait, AIM members have access to our AIM HR Helpline, where they can call or email experienced HR professionals Monday through Friday for practical guidance and real-world answers. Visit AIMHRSolutions.com or email HRInfo@AIMHRSolutions.com, and you’ll find us. We’d be happy to help.

Sarah, Tom — thank you, as always, for being here and lending your expertise to the forum. It’s very good to see you all. And good luck on the phones.

Sarah Piscatelli:
Thanks, Pete.

Pete Wright:
All right.

Sarah Piscatelli:
Good to see you as well.

Pete Wright:
Thank you, everybody, for being a part of this. We’re going to hang up the live stream, and we hope you enjoy your lunches. Back to work, everybody.