by Michelle Alvis, Mike Bishop J.D.
First published on blue avocado on July 26, 2021
Last month, we discussed the factors to consider in making the decision to conduct a workplace investigation in-house, or to retain an outside investigator. If you decide that an in-house investigation is appropriate, this article is for you.
Approaching these investigations in a way so that the process is fair, objective, and thorough, as the law requires, can be formidable for a beginner. However, there are several fundamental principles that can serve as a guideline for conducting the investigation into this complaint.
Study the complaint and any other documents (such as emails) that frame the facts and issues involved in the dispute so you have extensive familiarity with the issues about which you will be asking questions. Be sure to review your internal handbook on complaint procedures to follow what your organization has established.
Create a game plan. This includes drafting an examination outline for each witness, securing all appropriate documents you plan to use for each witness, and, if you’re relatively new to the process, practicing conducting the interview first.
It also includes scheduling interviews. While variations in doing this can vary, it’s typically the most productive to schedule interviews in the following order:
Accused or respondent
Depending on how the information comes in, it may be necessary to re-interview any of these individuals to clarify any unsolved issues and to address any unanticipated issues the examinations presented. Let all the parties know upfront you may have to come back and re-interview.
If necessary, provide interim protection for the complainant or witnesses depending on the circumstances. This could include, among other things, offering time off, removing the alleged harasser from the workplace, and providing assurances that any retaliation will not be tolerated and offering an open door to any such incidents.
Conducting the Examination
This is, of course, the heart of this process. While you have an outline of what you want to ask, use it as a guide, not as a script. It is important for you to listen to what is said and ask follow-up questions, even if they’re not on the outline. You need to be flexible and ready for anything. Your initial preparation will pay dividends in ensuring the examination is thorough and complete.
Watch the witnesses. One of the most important tasks an investigator needs to perform is to assess and make determinations of credibility. This is essentially the key to resolving disputed factual accounts of the facts—also known as the classic “he said/she said/they said” situation. Even if witnesses and employees are remote, it’s imperative to conduct the meetings on video.
Be observant as to how the witnesses respond to the questions. How they act and how they react, and their demeanor are essentials in evaluating credibility.
Here are some things to consider when deciding who is most credible:
Did the person’s chronology of any events they related differ greatly from the chronology of any other interviewees? If so, how?
What was the demeanor of the interviewee? Was the interviewee nervous, obviously uncomfortable, sweating, or defensive? If you sense this is only due to trust of authorities, you can elicit the fact at the time of the interview.
Was the interviewee able to make eye contact as they discussed the answers to your questions? Record your observations objectively and completely.
Did the interviewee make any admissions during the interview? For example, did they say anything like, “She laughed at the joke, just like everyone else.”
Did the interviewee specifically deny anything?
How does the person’s version of the facts compare to other versions? Does it resemble any other versions, or does it differ? If so, does it differ greatly?
Did the interviewee give you a plausible explanation of why they are raising a complaint? Or, in the case of the alleged harasser, of why a complaint was raised.
Was the interviewee forthcoming with information, or did you have to “drag” it out?
Do you as the investigator feel confident that you are hearing the truth? Are you getting an overall impression of credibility, or the does the version of the facts not make any sense?
Take good notes.
In fact, it may be appropriate to record the interviews. If you decide to do this, make sure that you get the witnesses’ consent to record the interview and make sure that consent is expressed on the recording.
Maintain confidentiality and dignity of the process, including conducting the interviews at a neutral, private location on the worksite and directing the interviewee to keep the process confidential to the best of your ability.
Never promise confidentiality, but instead assure the witness that it may be necessary to discuss their response with others, but that you will do all you can to maintain confidentiality.
Make sure you deliver on this promise and don’t discuss the ongoing investigation with anyone except those who may need to know, such as HR personnel or board members who have been designated as liaison to monitor the investigation
Close the investigation
Return to all parties and let them know the investigation is now closed, so witnesses and complainants know it’s over.
Draft a thorough and fair investigation report
After you have obtained and gathered the information from the witnesses, it is the time to come to conclusions and record. To help you know how this should be done, here are some thoughts:
Describe investigation process/procedure
Summarize responses from interviews
List documents retrieved
Describe findings objectively
Recommendations for further action
Follow up with complainant and respondent with process followed and findings
Remember: What you write may someday be read by a judge and jury—and if you have any concerns about the final report, have counsel review it to ensure it is fair and objective, with conclusions well-supported by evidence. The entire investigation process is a complicated, yet critical step in making sure the risk to the employer from the alleged acts of harassment is contained and the risk of the investigation being found to be incomplete, unfair, or impartial is minimized. More than anything, good investigation techniques are an art and not a rote series of standardized procedures.
If this brief map of the steps to take in an investigation seems daunting and beyond the abilities of the internal investigator to properly handle, reconsideration of using an experienced outside investigator is appropriate and understandable.