Unique Challenges for Nonprofits When Conducting a Workplace Investigation, Part 2
In part one of this blog, we looked at understanding when to conduct nonprofit workplace investigations, how to conduct an effective and compliant investigation, and why hiring an external investigator can be wiser than using an internal investigator.
The following are a few more issues for nonprofits to consider when conducting a workplace investigation.
6. Nonprofit Culture and Power Dynamics
In contrast to most private sector employers, many nonprofits have flattened or blurred hierarchies and/or ambiguous organization charts. We often encounter nonprofits with a passionate founder-director, board members who are also donors, volunteers with strong ties to staff and/or the community, and staff who are performing multiple roles at once, often without clear job descriptions. Some of the unique challenges that arise from this dynamic include:
Difficulty for an internal staff member to act as a neutral investigator because of the close-knit relationships amongst employees, volunteers, donors, and other stakeholders
Lower likelihood that participants in the investigation will maintain the confidentiality of the investigation
Higher likelihood that witnesses may not agree to participate in an investigation
Reputational and mission risk when a founder or executive director is accused of misconduct
Volunteers and board members who may not be covered by the same employment laws that govern employees
Being intentional about establishing investigator independence and scope, sometimes involving the board or an external investigator for sensitive matters, can help keep the process genuinely fair.
7. Good Documentation is Both a Tool and a Record
Nonprofits, especially smaller ones, often face staffing and cost limitations. We have observed that many of our nonprofit clients face greater challenges with keeping track of internal records and documentation (likely due to the fact that employees often wear many hats). Among the things that all employers, including nonprofits, need to properly document before, during, and after a workplace investigation are:
The employer’s rationale for any employment decisions, including corrective actions taken
Employees’ personnel records, including disciplinary decisions, coaching feedback, and performance management documents
Evidence, e.g., emails, photos, and texts
Good documentation not only strengthens decision-making but also protects your nonprofit in case of legal scrutiny.
8. Good Communication Is Critical
Like good documentation, good communication is also critical. A mistake nonprofits often make is assuming that confidentiality means not ever saying anything to anyone, or conversely, oversharing information amongst staff members. Neither of these approaches are the best practice. Instead, your organization must communicate appropriately about the process:
Inform the complainant and respondent of next steps
Explain any interim measures taken to protect safety or integrity
Close the loop with non-confidential information about outcomes
Employees and volunteers who observe an investigation happening will often fill gaps with assumptions if the employer does not inform the employees of what is happening. Protecting confidentiality is necessary, of course, but so is transparent communication. Transmitting non-confidential information promptly helps foster trust amongst your staff and volunteers. If you have questions about what exactly should be kept confidential and what can be disclosed to staff, speak to an AWI-certified workplace investigator.
9. Training Doesn’t Stop with Onboarding
Training is not optional, particularly in California, where harassment prevention training is required once every two years for employers with over five employees (and must include supervisors once your organization reaches 50 employees). Beyond compliance training, nonprofits should also consider:
Investigator training for HR staff or board members
Training managers to proactively prevent harassment and discrimination, and to foster a culture of inclusivity
Training staff, particularly those in leadership roles and HR, on unconscious bias and interviewing techniques
Well-trained staff are better equipped to respond to issues appropriately before they escalate into formal complaints and investigations.
10. Post-Investigation: Healing and Follow-Through
Investigations aren’t just about determining facts. They are also about helping your organization heal and move forward. This means:
Taking corrective and preventative action
Reviewing and updating policies
Offering support to affected employees
Monitoring for retaliation or cultural backlash
A thoughtful post-investigation plan minimizes future issues and reinforces your nonprofit’s commitment to fairness and safety.
Be Well Prepared
Workplace investigations are rarely easy, especially for nonprofits juggling lean teams, big missions, and complex relationships. But with solid policies, objective investigators, proper legal grounding, and careful communication, your organization can handle investigations in a way that upholds dignity and fairness, protects your mission and reputation, reduces legal risk, and even improves your workplace culture.
If you haven’t yet, consider building or updating your investigation policy this year, and make sure your team knows it before a crisis hits.
Our team at Maier Law Group can help. Please don’t hesitate to contact us with questions and concerns.
Maier Law Group regularly assists employers with workplace investigations. Please reach out if we can help to further explain our investigation process.
Author: Margarita Wear, Partner. Margarita conducts workplace investigations, counsels clients managing internal investigations, and provides advice and counsel to businesses of all sizes. Margarita’s investigation practice includes both workplace and educational institution (Title IX) investigations, and she has completed a 40-hour mediation training.
This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.