The May 2026 employment law update provides guidance on best practices for Employer workplace investigations based upon recent trends in employment litigation:
Internal workplace investigations have long served as a critical risk-management tool for employers facing allegations of discrimination, harassment, retaliation and employee misconduct. When conducted effectively, they allow organizations to identify issues early, respond appropriately to complaints and build a defensible record supporting employment decisions. Increasingly, however, the investigation itself has become a focal point in employment litigation.
Employees and their counsel frequently scrutinize whether an investigation was truly impartial or merely a process designed to justify a predetermined outcome. Courts examining these claims have made clear that not every flaw or omission in an investigation will establish liability. Still, where the investigative process appears superficial, biased, incomplete or closely tied to disciplinary decision-makers, those deficiencies can undermine an employer’s credibility and support claims of pretext or retaliation.
Recent employment disputes illustrate how these challenges arise in practice. In some cases, employees allege that investigators lacked independence because human resources personnel or in-house counsel were simultaneously involved in both fact-finding and disciplinary decisions. In others, plaintiffs point to limited witness interviews, selective evidence review, poor documentation or failures to adequately address employee complaints as evidence that the process was outcome-driven rather than a genuine effort to determine the facts.
These concerns often center on three interrelated concepts: independence, credibility, and trust. Independence is essential because investigations lose persuasive value when employees perceive investigators as aligned with management or invested in a particular result. Courts may view overlapping investigative and disciplinary roles as evidence that the process lacked neutrality, particularly when employment decisions appear to have been made before the investigation concluded.
Credibility is equally important. An investigation may satisfy procedural requirements on paper yet still appear unreliable when examined during litigation. Plaintiffs’ attorneys routinely challenge what investigators failed to do – including witnesses they did not interview, records they did not review, and allegations they did not fully explore. Employers must therefore be prepared not only to show that an investigation occurred, but also to explain why its scope, timing and methodology were reasonable under the circumstances.
Trust also plays a significant role in the effectiveness of workplace investigations. Employees are far more likely to participate candidly when they believe the process is fair, confidential, and free from retaliation. Conversely, employees who perceive investigations as management-driven or predetermined may withhold information, avoid participation or later challenge the integrity of the process itself. Building trust requires clear communication, meaningful anti-retaliation protections, and investigators capable of navigating sensitive workplace dynamics with professionalism and impartiality.
For employers, the broader lesson is clear: workplace investigations should not be treated as mere compliance exercises. They are often central pieces of evidence that may later be dissected by opposing counsel, judges, and juries. Timing, documentation, internal communications and decision-making processes can all become subject to scrutiny in discovery.
Organizations can reduce risk by separating investigative and disciplinary functions where possible, carefully managing communications during the process, and ensuring investigators possess not only technical knowledge, but also sound judgment and strong interpersonal skills. In matters involving senior leadership, significant employee complaints or heightened legal exposure, employers may also benefit from engaging independent outside investigators to reinforce the integrity of the process.
Ultimately, the effectiveness of an internal investigation depends not simply on whether it was completed or any particular outcome, but on whether it will withstand scrutiny after litigation begins. Employers that prioritize independence, credibility and employee trust place themselves in a far stronger position to defend both their decisions and the investigative process that supported them.
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels businesses on commercial contract matters.
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