Inevitably, your organization will have to conduct a workplace investigation. It may be because an employee has alleged discrimination, or perhaps someone has stolen something. Whatever the reason, an investigation is in order—and you have to get it right.
An inadequate investigation can do more harm than good. Courts have often criticized employer investigations, especially those involving sexual harassment, for failing to interview the accused promptly, corroborate allegations, interview important witnesses or sufficiently evaluate the evidence.
A thorough investigation consists of seven phases.
1. Preparation and planning
First, determine the scope and nature of the claim. If an investigation is beyond the ability of in-house staff, hire outside expertise, such as accounting or law enforcement experts. Define your cost parameters and time considerations. Decide whether you need to inform outside authorities, such as the police.
This phase of the investigation should focus on identifying the issues. What are the specific allegations? Were policies breached or laws broken? Once you have determined the nature of the issue, decide how the investigation will proceed. Will a simple paper analysis be enough? Are interviews in order? Should they be recorded?
2. Information gathering
Prepare for interviews in advance by obtaining as much background information as possible. Prepare an outline for each interview, including questions. Anticipate any difficult issues. Decide who to speak with first and whether the interviews should be conducted one-on-one or with another interviewer or witness in the room. If you will be recording the interviews, make sure that everyone knows. Pennsylvania’s wiretap law requires consent.
In a union setting, the employee being interviewed may request that a union representative sit in. It’s up to the employee to make the request. and this requirement applies only to investigatory interviews, not to disciplinary meetings.
To begin the interview session, start with the classic who, what, when, where, why and how questions. In time, ask probing questions (e.g., “Tell me about …” or “Describe what you know about …”). Avoid questions that require a yes or no answer; they limit the discussion. Don’t be afraid to ask follow-up questions.
Some employees may refuse to cooperate. The interviewer should have a clear understanding of the company’s position. If company policy requires all employees to cooperate in investigations, explain that refusing to cooperate may mean disciplinary action. Have a copy of the policy available. There are ways to successfully handle hostile employees. (For some tips, see box below.)
Handling a “paper trail” investigation also requires some care. Items such as documents, computers, discs or files may be relevant to the investigation. Be sure to maintain a documented chain of custody indicating who gave you each document and when. Mark documents clearly and don’t destroy anything. In addition, be sure to store evidence in a secure environment. Limit access to those who have a reason to review the material. Note the name of anyone who handles the evidence, as well as the date.
3. Verification and analysis
Always make a diligent effort to verify the sources of the information. Corroborate all representations and identify any contradictions. Make sure that the results of the interviews make sense, while determining if witnesses had any motive to lie.
4. Discipline, corrective action or both
Determine what policies have been breached, and review the employee’s past work record and . Compare your past disciplinary practices when similar acts of misconduct occurred. If the employee is a member of a protected class, determine if disciplinary sanctions will result in disparate treatment or disparate impact.
5. Risk assessment
Conduct a risk assessment to determine if any employees or third parties are at risk of physical harm or retaliatory action. If there is a potential risk, take appropriate action to safeguard employees and mitigate employer risk and liability.
Keep track of everything having to do with the investigation, including interview notes.
7. Prevention and education
Identify any potential liability claims. If you discovered legal problems, make sure you come up with ways to keep the same thing from happening again.
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