Most employers only think hard about their investigation process after something has already gone wrong. Travis Foster spends his time on the other side of that timeline.
A conversation with Travis Foster, Chief Legal Officer at Work Shield
Workplace investigations sit at the intersection of HR, legal, and operations, and that is exactly why they are so easy to get wrong. Employers often treat an investigation as a box to check once a complaint arrives, rather than a process that was either built to hold up or wasn’t, long before the complaint ever showed up.
We spoke with Travis Foster, Chief Legal Officer at Work Shield, about the misconception he sees most often, what makes an investigation defensible later, and what employers should put in place before the next complaint, not after.
The Most Common Misconception About Workplace Investigations
Q1: What’s the biggest misconception employers have about workplace investigations?
Travis Foster: That an investigation is something you do after a complaint arrives, rather than a process you build in advance. By the time a report comes in, it is too late to design the process. You are just executing whatever exists, and if nothing exists, you are improvising under pressure.
The second misconception follows close behind. Employers assume that if the underlying complaint turns out to be unsubstantiated, their exposure ends there. It does not. Retaliation claims do not require the original complaint to be valid. They require protected activity and an adverse action that followed it. An employer can run a fair investigation, find nothing, and still face real exposure over how the employee was treated afterward.
What Makes an Investigation Defensible
Q2: What determines whether an investigation holds up later, whether that’s in litigation or under EEOC review?
Travis Foster: Documentation and consistency. Not the outcome. Regulators and courts are not primarily asking whether you reached the right conclusion. They are asking whether you followed a process you can show, step by step, and whether that process looked the same for this complaint as it did for the last one.
SHRM has pointed to real cases that turn on exactly this. In Harris v. FedEx Corporate Services in 2024, the Fifth Circuit reversed a punitive damages award specifically because FedEx had conducted a documented, in depth investigation each time the employee complained, including interviews and a clear paper trail. That is the difference between a defensible process and an assumption that things were probably handled fine.
Every investigation should be able to answer the same three questions later. What was reported, and when? What evidence was gathered, and how? What decision was made, and on what basis? Whichever one is missing is where the exposure lives.
Building a Process Before the Next Complaint Arrives
Q3: What should employers put in place before the next complaint, not after?
Travis Foster: A decision framework that sorts concerns by risk before anyone decides who handles them. Most organizations do not need a bigger team. They need a clear, repeatable way to recognize which matters can stay in house and which ones need a neutral third party from the start.
They also need a structural answer to the conflict of interest question. If the person who would normally handle a complaint is also the person the complaint is about, or reports to them, that path needs to be decided in advance, not figured out in the moment. Waiting until a specific complaint forces that decision means making it under pressure, with less objectivity, and often too late to prevent the appearance problem entirely.
Speed matters too, but only once the first two are in place. A fast investigation built on a weak framework just gets you to a bad outcome more quickly.
Can an employer still be liable for retaliation if the underlying complaint was not substantiated?
Yes. Retaliation claims do not require the original complaint to be valid. They only require protected activity and an adverse action that followed it. An employer can run a fair investigation, find nothing, and still face real exposure over how the employee was treated afterward.
What makes a workplace investigation hold up in litigation or under EEOC review?
Documentation and consistency, not the outcome. Regulators and courts are asking whether a process was followed that looked the same for this complaint as it did for the last one. A defensible investigation can always answer what was reported, what evidence was gathered, and what decision was made and on what basis.
Workplace Investigations Are a Governance Function, Not Just an HR Task
Across all three answers, the same idea holds. The investigations that create the least risk are not the ones handled by the most people or the fastest team. They are the ones built on a process that existed before anyone needed it, sorted by actual risk, and documented well enough to explain itself later without anyone in the room.
That is consistent with what we’ve heard from Jared Pope on why treating every investigation the same quietly increases cost, and it is the same filter behind the five questions worth asking before launching an investigation. The legal exposure and the operational cost come from the same root cause: no consistent process for deciding who handles what, and why.
Is Your Investigation Process Ready for the Next Complaint?
If your organization is deciding how to handle each workplace concern case by case, without a consistent framework or a clear answer to the conflict of interest question, that gap is already creating exposure, whether or not a complaint has surfaced it yet.
Talk with our team about what a structured, risk based, legally defensible investigation process looks like in practice.
