Workplace investigations are becoming a more and more regular task for Human Resource Departments for businesses, big and small. Yet, no matter how commonplace they have become, there is still an art to doing it correctly. First and foremost, it is important that they are conducted neutrally and consistently, no matter the accuser or accused. And that is usually accomplished by retaining an impartial investigator to do the investigating.
Thereafter, there are thousands of tips and “rules” that the investigator should be mindful of. Below, please find a short list of ten tips for actually conducting the workplace investigation.
- Get the Story. Get the complete story from the complainant before you interview anyone else, assuming you are able to interview the complainant. If an attorney already represents the complainant, you will need to make a request with the attorney for an interview with his/her client. Rarely is this request denied, but it can happen. In that case, request that the attorney provide you with as much detail about the complaint as possible. Use the attorney’s report as the basis for the claim, together with any written or verbal complaints or statements the complainant has made to co-workers, supervisors, Human Resources, or others. If possible, before you interview the accused employee(s) and witness(es), you should obtain the full story from the complainant or from his/her representative if the complainant is unavailable for any reason. Conduct a face-to-face interview unless there is a reasonable and justifiable reason you are unable to do so.
- Secure Evidence. Obtain all relevant documentation from all sides. This includes, for example, documentation related to the comparator employees if you are investigating a disparate treatment claim.
- Remember Privacy Rights. Due to privacy rights, do not seek medical/diagnosis information of the parties, comparators, or witnesses. Be mindful of all persons’ privacy rights in their medical records, including HIPAA (Health Insurance and Portability Act of 1996), CMIA (California Medical Information Act found at Cal. Civil Code Section 56, et seq.), and other state constitutional protections.
- Avoid Prejudgment. Do not review the personnel files of the parties prior to conducting the investigation so you do not prejudge the current claim. However, the personnel file might later become important to a credibility assessment.
- Interview all Witnesses. Unless clearly irrelevant, interview all witnesses identified by the complainant and alleged wrongdoer. If the identified witness is irrelevant, document the reason you did not interview that witness. For example, when asking the party to identify all the witnesses who he or she would like to be included in the investigation, also ask to what facts he/she expects the witness can attest. If the job performance of the party is not an issue in your investigation, then you do not need to interview a named witness whose only knowledge is how great a performer the party was at his/her job.
- Take Notes. Take detailed written notes of your interviews or tape record the interviews. If you prefer the note-taking method, then ask the interviewee to read the notes and acknowledge (by signature on each page) that the notes are accurate and complete regarding the interview. Follow the same note-taking or tape-recording procedure for all of your witnesses (absent some unforeseeable circumstance), including the complainant and the accused employee.
- Document the Process. Most investigators are concerned about documenting the subject matter of their investigation. However, be mindful that HOW you conducted the investigation could be subject to a latter investigation and inquiry. So, document the amount of time you spend interviewing each witness and spend a sufficient amount of time with each important witness. Document the steps you took and when you took them. Document the amount of time spent reviewing documents.
- Find Contemporaneous Accounts. Interview witnesses to whom the complainant may have made contemporaneous statements or had contact with. The investigator is not bound by evidentiary rules, and in any event, contemporaneous statements are a possible exception to the hearsay rule. If a credibility issue arises, contemporaneous statements should be obtained and documented in the investigation. More importantly, you may be able to infer information on how the complainant or accuser acted shortly before or after the incident you are investigating. You can balance this information with your other evidence and decide how much weight to give it later. When interviewing the complainant, be sure to ask if he/she contemporaneously reported the incident to any peers, family members, or other third parties, as this may be evidence that the alleged wrongdoing occurred.
- Find All Witnesses. Sometimes the witnesses may be former employees, vendors, customers, or clients. Understandably, the employer may be reluctant to get these individuals in an internal employee issue. In that case, you have to weigh how important the information is against the employer’s desire not to unnecessarily involve customers in their private personnel matters. Can the information be obtained from another source without involving one of these individuals? Is the information to be sought duplicative of undisputed information you already have? If so, you may not need to involve them. Regardless, document that the former employee was identified and the reasons why they were not contacted as an integral witness.
- Be Thorough. You may need to circle back and re-interview witnesses to clear up new issues that have come up with other witnesses. Tell witnesses at the end of the interviews that you may need to call them back later for follow-up questions. Sometimes you may need to only ask one follow-up question, which might be handled quickly in a telephone call. However, if you have a large amount of follow-up questions or a question on a significant issue, a follow-up interview in person is advised.