Bulletproofing Employment Investigations

This post on conducting workplace investigations that hold up to scrutiny is guest authored by Fran Sepler of Sepler & Associates.

It emphasizes the importance of vertical and horizontal consistency and reasoned decisionmaking in the investigation of allegations of workplace misconduct, such as harassment.

Introduction

When preparing for and conducting an employment investigation, one’s primary focus should be on assuring the investigation is neutral, rigorous and to the extent possible, independent.

Close behind these primary concerns should be acute sensitivity and awareness that any employment investigation is liable to be held up to scrutiny.

What can an employment investigator do to anticipate that scrutiny and preempt attacks? The answer can be found in two fundamental characteristics of “bulletproof” investigations; consistency and reasoned decisionmaking.

Consistency

The most credible and defensible investigations are:

Vertically consistent — within a particular investigation, practices, notices and formats are alike from interview to interview and action to action, and

Horizontally consistent — within an organization, each investigation is bound by administrative and policy controls to ensure that practices, notices and formats are the same from investigation to investigation.

Organizations and investigators should anticipate a variety of challenges and requests and establish clear protocols and practices to ensure that investigations cannot be characterized as “ad hoc” or their neutrality challenged based on inconsistent decisions made by individual investigators — whether in the same investigation or in others.

Policies Promote Consistency

Examples include:

Policies clearly prohibiting or allowing tape recording of interviews, and in the latter case, specific criteria for doing so.

Policies clearly outlining the circumstances, if any, under which third parties may be present during investigative interviews (in the case of Weingarten compliance, this policy should include clarity about notifications, selection of representatives, and documentation of waivers).

Protocol establishing the circumstances under which employee records should be reviewed, such as performance reviews, salary documentation, and prior discipline.

Protocol establishing the circumstances under which investigative interviews will be conducted by more than one individual, and the role of each individual in such a “two on one” situation.

Protocol establishing the information to be given to employees when they are being interviewed as part of an investigation.

As to the last item, a common strategy to suggest that an investigator is not neutral or was in some way unfair is to represent that a party who participated in the interview was misinformed or unaware of the actual nature, scope, use and process of the interview.

Investigators should use a checklist or other method to ensure that they review with interviewees appropriate warnings, questions, “rules of engagement,” privacy issues, and the role of the investigator.

It is also helpful to be sure that the interviewee is permitted to keep a copy of the checklist and that they are encouraged to contact the investigator with any doubts, concerns or questions that they have after they complete the interview.

Reasoned Decisionmaking

The circumstances, nature and scope of investigations can be quite variable. Investigations are a compilation of choices or decisions by the investigator.

While conducting an investigation, one should always have a rationale for choices and decisions, and should always be fully prepared to answer with assurance and logic the question “Why did you . . . ?” or the question “Why did you . . . in that particular way?”

Expanding Employment Investigation to Additional Issues or Allegations

One area that tends to draw scrutiny is a decision to expand an investigation from its original scope, or, conversely, a decision to exclude a new allegation from the effort already underway. It is critical that there be consistent and reasonable criteria for making this decision. Amongst the criterion might be responses to the following questions:

Is the new issue sufficiently related to the original issue that findings on the new issue would have an impact on conclusions about the original one?

Do the parties central to resolving or exploring the new issue substantially overlap with the existing pool of witnesses?

If the new allegations are true, would they likely change the organization’s course of action relative to the existing allegations, or conversely, if the new allegations are found to be untrue, could this substantially affect the assessment of credibility of any party to the current investigation?

Is the new issue of sufficient scope that it calls for a separate dedication of resources in order to ensure that the original investigation is completed in a timely way?

Selection of Witnesses Interviewed in Workplace Investigation

A second area of scrutiny will be decisions the investigator made as to who was interviewed and who was not.

To the degree an investigator decides to refrain from interviewing particular witnesses, the reason for doing so should be carefully thought through and documented. Questions that may have to be answered include:

What efforts were made to reach an “unavailable” witness?

If certain witnesses were deemed unnecessary to interview, why was this decision made?

What attempts were made to enlist the cooperation of uncooperative witnesses?

Were any witnesses not interviewed because of instructions the employer issued to the investigator?

Other decisions or circumstances likely to be questioned if an investigation is challenged include unconventional interview locations and telephone interviews.

Conclusion

When employment investigations are done consistently, they are inclined to be fair. When they are done based on solid reasoning, they will certainly be rigorous.

By “bulletproofing” employment investigations the investigator not only shields the investigation from avoidable damage, but ensures that the fundamental intention of an investigation is preserved.

Fran A. Sepler is a well-known expert in the field of workplace investigations. The methods, models, and protocol that she has developed are used from the Fortune 500 to the Ivy League and beyond. She has provided training, employee relations consulting, and investigative services to thousands of companies throughout the world.
Sepler is president of Sepler & Associates, a firm specializing in assessing and resolving workplace disputes and charges. She writes about investigations on her blog, Investigating Further.
Her forthcoming book, Finding the Facts: What Every Workplace Investigator Needs to Know, provides a step-by-step guide to conducting effective and defensible employment investigations — in much more detail than given above.

Disclosure: I’ve known and admired Fran Sepler since we met on freshman move-in day at Beloit College several decades ago, and she has included my favorable comments in the forward to the book.

Illustration credit: Mike “Dakinewavamon” Kline via flickr

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