It is in every employer’s best interest to know when and how to conduct an effective and efficient workplace investigation. In the first part of this three part series—Be A Super Sleuth: Laying the Framework for Effective Workplace Investigations—we provided a number of pre-investigation considerations for employers, including an overview of policies for companies to consider implementing and tips for maintaining a workplace culture that encourages the reporting of complaints. Now, in the second part of this series, we hope to provide you with the nuts and bolts of how to prepare for and conduct an effective workplace investigation.
Conducting an effective investigation requires deliberate planning and execution, and should be handled by appropriately trained personnel. An employer’s focus in every workplace investigation should be to effectively carry out a process where the complaining party is heard, the problem is given serious attention according to company policy, and a reasonable resolution is provided. Though one might assume that the employer’s desired end-result of a workplace investigation is the avoidance of litigation, unfortunately today’s litigious culture makes that more and more improbable. If litigation does occur, the way in which you investigated and resolved a complaint will be significant in building a case either for or against the company.
Part 1: Deciding Who Will Conduct the Investigation
Investigators must be able to organize an investigative plan of action; increase or shorten the witness list as a function of facts revealed during an unfolding investigation; take careful, complete, and copious notes; and maintain the confidence of information obtained. Qualities an employer should consider when deciding who should conduct an investigation include the investigator’s training, demeanor, natural empathy skills, organization, thoroughness, and trustworthiness. Utilizing the wrong individual could be interpreted as intimidation, negligence, or perhaps even a disregard for the rights and protection of the complainant. Selecting the accused, a person closely associated with the accused, or other employees with vested personal or corporate interests in the matter to serve as the investigator may also prove problematic. Furthermore, employers should not limit themselves to using the same investigator for every situation, but rather consider the complexity of potential issues and possible challenges presented by each particular scenario, and choose an appropriate investigator accordingly. Additionally, employers should consider how they want the company represented at a deposition or at trial—should litigation follow.
Using attorneys or other consultants for a workplace investigation is always an option, but there are pros and cons to doing so. Using an outsider can be useful when there are issues of bias involved, and attorneys may be well-versed in the applicable law, but the attorney-investigator will be unable to represent the employer in any subsequent Equal Employment Opportunity (EEO) proceeding or litigation if that attorney will likely be called to testify as to the conduct of the investigation. A corollary of this issue is that the investigation, including the attorney’s final report, may not be protected by the attorney-client privilege or work-product doctrine. However, if an attorney is not speaking to witnesses during the investigation but is merely providing recommendations to supervisors and managers, the attorney-client privilege and work-product doctrine may remain intact although the effectiveness of the investigation may be questionable. In light of these concerns, it may be prudent for an employer representative to conduct the investigation independently, while seeking advice and direction from an attorney. Another option may be to retain an independent attorney-investigator who would only conduct the investigation but would not represent the employer in any potential resulting litigation.
Part II: Pre-Interview Preparation
Once a complaint is received, but before any interviews are conducted, certain steps should be taken to facilitate the investigation. Recommended steps include the following:
Review relevant documents. Assemble and review documents that may be relevant to the allegations. These may include personnel file(s); relevant policies (e.g., harassment, EEO); organizational charts; emails; and other documents. Keep in mind that other documents may need to be obtained and reviewed depending on what is discovered during the investigation.
Map out an investigation plan. Create a plan that includes a list of the people you are going to interview, the material facts and questions you need to cover at the interviews, location and timing for the interviews, and whether anyone else should be in attendance at any of the interviews. You may want to hold interviews away from the workplace or before/after the workday in order to ensure privacy and confidentiality. Depending upon the circumstances, the investigator should question the complainant, the accused, the supervisor(s) for the complainant and the accused, and most, if not all, other witnesses identified as having knowledge regarding the issue at hand. While there is no standard order that must be followed, it is often beneficial to interview the complainant first and the accused last.
Prepare an interview “script.” Before conducting the interviews, the investigator should have an outline of questions that are designed to obtain the relevant facts and the interviewee’s level of knowledge and credibility.
Part III: Conducting Interviews
When conducting interviews, detailed notes should be taken that include the date, the location, and the names of all the interview participants. Notes for each individual interview should be made on a new and separate page, so as to allow production of individual interview notes in the event of a discovery request for specific documents during litigation.
Several preliminary matters should be addressed at the start of an interview. The investigator should explain why the interview is taking place, the seriousness of the investigation, the role the interviewee plays in the investigation, how the information obtained may be used, and the importance of confidentiality. (In light of a recent NLRB decision, blanket application of a requirement of confidentiality whenever an employee is engaged in a workplace investigation may no longer be advisable.) Additionally, the investigator should explain that he or she is looking for truthful cooperation and completeness in the interviewee’s answers and that there will be no retaliation for good faith reports and statements. Note that the investigator should not promise that the employer will never discipline the interviewee, or any other individual, for filing bad faith reports and complaints. Similarly, the investigator should not promise the interviewee that everything will be kept confidential, because there may be facts the interviewee reveals on which the employer must act.
Part IV: Interviewing the Complaining Party
The initial interview with the complaining employee should be done as soon as possible after becoming aware of the complaint because it is imperative that the investigator obtain as much detailed information as possible early on. The old, often-cited reporter’s questions are the ones investigators should consider when talking with any witness, but especially the complainant: who, what, when, where, why, and how. The investigator should note observations of odd or irregular behavior (e.g., “blushed,” “raised voice,” “no eye contact”) but should avoid making conclusions based on those observations (e.g., “appears to be lying”). Additionally, investigators should try to use terms like “offensive” or “unprofessional” when inquiring about the conduct, as opposed to using words with legal significance like “harassment” or “discrimination.” Using the term “harassment,” for example, implies that the employer has already conceded the behavior is harassment.
If there is a written complaint from the complainant, make sure to go through it with the complainant line by line. In addition to asking the complainant about the specific complaint, the investigator should also ask about the number of times the conduct has allegedly occurred; a list of all possible witnesses; whether the conduct occurred at any particular time or location that it could be observed by the investigator; whether there are any other employees with similar complaints; and whether the employee has complained to anyone else who could corroborate the employee’s story. At the conclusion of the interview, the investigator should take time to review his or her notes, ask any follow-up questions, and conclude with the all-important question: “Anything else?”
Part V: Interviewing the Accused
The investigator should get the accused’s response to each of the complainant’s allegations. The investigator should elicit as many details from the accused as possible regarding his or her version of events, asking who, what, when, where, why, how, whether there are any supporting witnesses, whether there are any supporting documents, and “anything else?” Additionally, the accused should be asked whether there is any reason (e.g., personal biases or previous conflicts) for the complainant to lie or exaggerate. The investigator should be prepared for the accused’s possible question about representation by an attorney and next steps of the investigation. Finally, the investigator should advise the accused that there is to be no retaliation against the complainant or any other employee witnesses that may be involved in the investigation.
Part VI: Interviewing Third-Party Witnesses
An investigator should interview most, if not all, witnesses identified by the complainant and the accused. If it is difficult to determine if a witness needs to be interviewed, the investigator should err on the side of caution and conduct the interview. Failure to interview witnesses identified by the complainant and the accused could create the perception that the employer or investigator was not interested in finding the truth and could endanger the effectiveness of the investigation. Additionally, one often overlooked group of potential witnesses is former employees. Employers should consider interviewing these individuals, particularly if they worked with or for the accused and left under unusual circumstances.
Part VII: Considerations in the Unionized Workplace
For the most part, an investigation in a unionized setting will involve the same general considerations as a non-unionized workplace. However, there are a few aspects unique to a union environment that warrant special mention, including an employee’s right to union representation in a pre-disciplinary interview and special warnings and affirmative assurances of no reprisal prior to interrogating an employee.
Stay tuned for the final part of our three-part series in which we will address post-investigation steps.
Ashlee M. Bekish and Ashley A. Wenger are associates in the Minneapolis office of Ogletree Deakins.