Nine Traits of a Bang-Up Investigation
What makes a workplace investigation so good that you can’t wait to show the EEOC investigator or a plaintiff’s attorney what you did? All right, maybe nothing would make it that good – but here are nine things employers can do to help ensure that they at least won’t be ashamed of their workplace investigations:
No. 1: The investigator is unbiased. And ideally doesn’t have extensive, intimate knowledge about all of the personalities involved. An investigator who knows too much may have a hard time keeping an open mind. That’s one reason why larger companies often send in someone from the corporate office to investigate. Smaller companies may find it more difficult to find an investigator with that blissful ignorance. But they can consider bringing in someone from outside, like a lawyer or an HR consultant. If that isn’t possible, then the investigator will just have to temporarily put aside what he knows, to the best of his ability, while the investigation takes place.
No. 2: The investigator doesn’t have a “conflict of interest.” In this context, that means the investigator has authority over everyone involved in the alleged incident, including the authority to take appropriate action against whomever is determined to be the wrongdoer. She should be in a position to “let the chips fall” and to recommend corrective action without having to fear retaliation.
No. 3: The investigator knows how to conduct a workplace investigation. Oh, the horror stories we’ve seen! Here’s one: Employee accuses supervisor of sexual harassment. “Investigator” asks supervisor whether he did it. Supervisor says no. OK! Case closed! If your investigator is inexperienced, have him read points 4-9 below – or attend a seminar. You won’t regret it.
No. 4: The investigator talks to everybody who might know something. This would obviously include the accuser and the accused. But it also includes any witness identified by the accuser or the accused. It also includes any witness identified by the witnesses. And any witnesses identified by the witnesses’ witnesses. Yes, this could go on for some time. But you don’t ever want to be accused of failing to follow all possible leads that might reasonably generate relevant information. And if during the process you get an admission or other conclusive evidence, then you may be able to stop before having to talk with everyone.
No. 5: The investigator knows the difference between a “fact” and a “conclusion,” and knows that “facts” are better. Which of these tells you what you need to know? (1) “Joey is a sleazebag” (a conclusion), or (2) “Joey grabbed Mary on Friday, and I saw him do it” (a fact — or, at least, a specific factual allegation)?
No. 6: The investigator knows to review other evidence as applicable. This could include things like personnel records, work schedules, financial records, security camera footage, voice mail messages, and emails and other IT information. And much more, depending on the circumstances. The investigator should not be afraid to ask for help from a qualified expert (such as an IT professional) when she needs it.
No. 7: The investigator frequently refers to the applicable company policy while conducting the investigation to make sure he is following it. Plaintiffs’ attorneys love to get copies of employer policies, and then point out all the ways the employer didn’t follow them. (Often referred to as “shooting fish in a barrel.”) For this reason, if no other, whoever conducts a workplace investigation should frequently refer to any applicable policy as an investigation “checklist” of sorts – and especially if the policy itself is on conducting investigations.
No. 8: The investigator maintains confidentiality as much as practicable. Perfect confidentiality is not possible — otherwise, how would it be possible to investigate anything? But the investigator can refrain from sharing information with those who do not have a legitimate need to know. And witnesses should also be cautioned to keep the investigation confidential, identifying only the investigator or certain designated management officials for contacting in the future if the witness thinks of any additional information. (Note: Our National Labor Relations Board has been challenging certain “confidential” designations like this – but we’ll see if that continues under the current administration.)
No. 9: The investigator consults with others as needed during the course of the investigation and in determining what happened. This may include legal counsel, but it might also include other experienced Human Resources personnel, the employee’s manager and supervisor, “experts,” and others, depending on the nature of the investigation.
This article was written by Robin E. Shea of Constangy, Brooks, Smith & Prophete, LLP