Internal Investigations: Making A Decision (IV of IV)

by Michael Volkov

“When a decision has to be made, make it. There is no totally right time for anything.” – General George Patton

Companies need to be careful when resolving an internal investigation.  Assuming the results of an internal investigation are only used internally and not reported to a government agency, companies have to act transparently and with care. 

During the internal investigation confidentiality is important to the integrity of the investigation.  At the conclusion, the company needs to communicate its decision to the parties, and the reasons for its decision.  Some companies include a procedure for appealing the results of an internal investigation. 

Before reaching a decision, an investigator has to evaluate the evidence.  In some cases, the decision is straightforward.  Where there is no evidence to support a complainant’s claims against other employees or to explain allegations of theft or other misconduct, the investigator can quickly make a decision.  That decision may be challenged on procedural grounds but not on substantive grounds. 

The harder cases are those where the evidence is a lot closer.  Credibility may be the key to resolving the case.  In those situations, the investigator’s judgment and experience are critical to defending the investigation. 

In the investigation report, the investigator has to cite as many facts as possible to support the decision and document each conclusion supporting the decision.  If there is conflicting evidence and no corroborating evidence, an investigator can still make a decision based on the credibility of the parties and the interviews.  It is hard to challenge credibility determinations because of the importance of intangible factors or changes in critical witness stories relied on by an investigator. 

There may be times when the evidence is inconclusive and the investigator cannot reach a decision.  The company cannot take any action.  It would be irresponsible to place blame or deny an allegation when the “truth” cannot be determined.  If the company acts without a solid evidentiary foundation, the company could face claims of wrongful discharge, defamation, or retaliation. 

In this situation, the company needs to make an effort to “communicate” its decision or non-decision.  It has to explain to the parties or a complainant why the evidence did not support the claim or their respective positions.  It should offer the complainant or the parties an opportunity to submit any additional information and consider any additional arguments. 

There is no such thing as a “perfect” decision.  No one expects a company to reach perfect decisions in resolving these kinds of issues.

The goal is to be fair and reach a decision based on a complete examination of the evidence.  For example, courts are reluctant to second-guess employer actions, even when later proven wrong, if management acted fairly and in good faith in making the decision. 

The last step in the decision-making process is to communicate the decision to the appropriate parties.  The resolution of the investigation should only be communicated to those individual who “need to know” how the matter was resolved.  The message should be fair and communicated in good faith.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Michael Volkov, The Volkov Law Group | Attorney Advertising

Written by:

Michael Volkov

The Volkov Law Group on:

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