pdf.one hour pp. the dos and don'ts of investigations
TRANSCRIPT
Teri Morning, MS, MBA, SPHR/SPHR-CA
Teri Morning Enterprises
www.terimorning.com
The Do’s and Don’ts
of Conducting an
Internal
Investigation
Hilton Waikoloa Village Resort Big
Island, Hawaii.
Overview
• Employment Law Basics
• General
• An Initial Complaint
• Preliminary Investigation
• Witness Interviews
• Physical and Documentary Evidence
• Investigative Report
In Regards To
Employment Law Do:• Realize that Title VII of the Civil Rights
Act of 1964, and other employment laws may have some implications for almost all investigations occurring in the workplace.
– Including OSHA and safety laws.
• Understand state law, and even local law, including those which may not be employment laws but are applicable to the investigation.
• Include how to make any type of complaint and non retaliation language in your employee policies and training.
In Regards To
Employment Law Do:• Consider;
– A stand alone non retaliation policy.
– Ethics policy.
• Include vendors too.
– Investigative policy.
– Include in the progressive discipline policy, situations that will warrant suspension pending the outcome of an investigation.
• Leave some “room” for discretion.
– Revising the personnel file policy to carve out investigative files as employer files.
In Regards to
Common Law Do
Understand:
• Negligence;
– Hiring,
– Supervision,
– Retention,
– Investigation.
In Regards to
Common Law Do
Understand:
• Assault,
• Battery,
• False imprisonment,
• Invasion of privacy,
• Defamation,
• Malicious prosecution,
• Abuse of process.
In General Do:• Approach an investigation with an open
mind.
• Know that investigations are fact driven.
• Know your role-fact finder NOT employee advocate
• Think of yourself as a “reasonable” person under the circumstances. Consider what a reasonable person would do.
• Set parameters with your boss.
• Know your organization’s personnel policies and keep current with legal developments.
• Have a system of checks, balances and upper level review.
In General Do:• Establish an investigative protocol that
you routinely follow (e.g., how a complaint is documented, who is notified, who in your department undertakes what tasks). Deviations from protocol should be noted and justified.
• Start a chronology.
• Realize not all documentation is good documentation.
• Recognize when you need a separate investigation.
• Be vigilant for retaliatory behavior.
• Know its difficult to do a good investigation if you have no technical knowledge or there is a power imbalance.
• Know to bow out if you are not the right investigator.
• Get professional training in how to conduct a professional investigation!
In General Don’t:• Try Law & Order techniques!
• Assume you know what happened.
• Assume you “know” people.
• Assume you are a good judge of character.
• Make decisions based on your “gut”.
• Overestimate or depend on your knowledge of “body language”.
• Underestimate employees’ understanding of employment laws.
• Fail to realize desperate people do desperate things. Especially in a bad economy.
• Forget that a prompt and thorough
investigation may be your credit
union's best defense against
charges of workplace misconduct—
even if “bad” things are uncovered.
• Wait for a complaint if you become
aware of a workplace situation that
regardless of loss, may violate
policy or law.
• Do nothing.
In General Don’t:
• Be timid; you may have to be
assertive, ever-conscious of the fact
that you are charged with protecting
the credit union.
• Delay or procrastinate in commencing
an investigation; in doing so you may
compromise your defenses.
• Use Law & Order techniques.
Employer Investigations are interviews
not interrogations.
• Be sneaky and try to trap people.
• Promise, intimidate, make deals, or
threaten people.
In General Don’t:
An Initial Complaint Do:
• Document the substance of (if there is) a
complaint and the means by which you
received it; note date, time, and other
circumstances.
• Consider having a form. If there is a
complainant, request the person write
the complaint out firsthand.
• Understand that failure to document an
initial complaint accurately can
compromise your investigation.
• Document and consider investigating a
workplace situation that may violate
policy or law, regardless of whether you
have received a complaint about it.
An Initial Complaint Do:• Determine what policies and/or laws the
matter implicates.
– Failure to do this can lead to a flawed investigation and flawed outcome.
• Make sure your personnel policies contain a description of all your complaint procedures and that the procedure allows for complaints to be made to a number of designated parties within the organization.
– Broad enough to catch all complaints, narrow enough none slip through.
• Avenues of complaint other than direct supervisors.
An Initial Complaint Do:
• Make sure that those designated in
the complaint procedure know how to
address a complaint, take a
complaint, know your investigatory
processes and how to treat a
complaining employee.
• Identify those persons in the
organization who have a “need to
know” of the situation (and when
those persons should be made aware
of it).
• Understand the difference between
“need to know” and “WANT to know”.
An Initial Complaint Do:• Strongly consider consulting with
legal counsel for sound investigative
advice and to establish attorney-
client and attorney work-product
privileges.
– Understand communications.
• Determine whether prompt remedial
action is necessary to prevent a
situation from getting out of hand
and/or to protect individuals.
• Nothing that could be considered
retaliatory towards a person making
a complaint.
An Initial Complaint
Don’t:• Fail to document a complaint or
“constructive notice” of a workplace
situation which may warrant a full-scale
investigation.
• Fail to have a plan and a general
protocol which governs when and how
complaints will be handled by those
receiving them and when and how an
investigation will be conducted.
• Leave managers to take
complaints/investigate without training.
• Ignore complaints.
Preliminary
Investigation Do:
• Determine who is the best
investigator.
– No conflicts of interest.
• Best practice-2 investigators.
– Establish a division of labor.
• Best practice to have a co-
investigator.
–Always have a witness when
interviewing an accused.
• Determine the potential scope and
direction of the investigation.
Preliminary
Investigation Do:• Determine the goals of the
investigation.
• Ascertain the disadvantages of
proceeding with an investigation.
• Anticipate contingencies.
• Establish a timeline for conducting
the investigation.
• Realize good investigations take
some, often lots, of time.
• Investigate as policy implications
rather than law unless instructed
otherwise by legal counsel.
Preliminary
Investigation Do:
• Create an investigative file. Keep
out of personnel files.
• Recognize investigation files are
generally not personnel files - unless
you make them so through their
treatment.
• Compile a list of potential witnesses
and preliminary questions.
• Determine the order in which to
interview prospective witnesses.
Preliminary
Investigation Do:• Compile a list of potential
documentary and physical evidence.
• Review personnel files of the complainant and others identified in the complaint.
• Determine whether any persons identified have been the subject of prior investigations; if so, review investigative files.
Preliminary
Investigation Don’t:• Proceed without a plan and an
assessment of the situation.
• Delay in commencing the investigation.
– Some workplace investigations
(harassment) require you to be
“prompt.”
• Attempt to sway the outcome of the
investigation.
• Attempt to come to a conclusion after
interviewing each person.
• Destroy anything that might be
evidence.
Witness Interviews Do:
• Determine who should attend the
interview.
– Matching the demographic profile.
• Determine where and when to hold
the interview(s).
– Determine the “setting” of the
interview (e.g., formal, informal,
from behind your desk, at a
conference table, in adjacent
chairs). Authoritative?
Witness Interviews Do:• Consider asking the person making
a complaint/subject of the complaint if they are comfortable with you as investigator.
– But only if you HAVE other investigators.
• Anticipate questions and concerns of the witness; educate as to the process to put anxious witnesses at ease.
• Make sure you are prepared (note pad, copies of policies, cup of coffee).
– Give witness a note pad.
Witness Interviews Do:
• Establish and communicate the
ground rules for the interview;
retaliation statements, tape
recording allowed or not allowed),
opportunity for review and
correction of interview notes, etc.).
– Determine if an introductory
script is warranted.
– Determine if a review of any
policies is warranted.
– Use silence effectively!
Witness Interviews Do:• Prepare a generic list of questions
– Stick to the 5 “W”’s and a “H”; Who, What, When, Where, Why and How.
– Prepare a list of questions tailored to the specifics of the investigation. Determine how to contact prospective witnesses and what to tell them initially.
– Consider maps (1 per witness).
– Site visits.
• Vary your questioning technique to avoid redundancy, monotony, and predictability.
• Remember to have the witness identify other potential witnesses.
Witness Interviews Do:• Take accurate, detailed notes.
• Formalize (e.g., type, correct) interview notes promptly after the interview; your notes should look “professional.”
• Allow witness to review and correct interview notes if warranted.
• Have witness attest (by signature) to the accuracy of the notes and to the fact that he or she has had the opportunity to review, correct, and expand upon them.
• Use body language for a baseline.– Become a critical observer.
• Let the witness leave without their knowing how to contact you.
– 2 cards; 1 for them, the other for anyone who pressures them.
• Forget that your interview notes may become evidence in an investigation or lawsuit: they should be “professional” in appearance and substance.
• Express any opinions or agreements.
• Record any opinions or any subjective assessments of credibility.
• Make determinations on body language.
• Fail to educate ALL about retaliation.
Witness Interviews Don’t:
Witness Interviews Don’t:• Assure the witness that his or her
statement will be kept in strict confidence; ultimately, you may have no control over the disclosure of the information presented. Instead, communicate that only those with a justifiable “need to know” will have access.
• Intimidate or threaten witnesses; coerced testimony can be more harmful than no testimony.
• Conduct “group” interviews. Witnesses should be interviewed one at a time so they do not influence or otherwise taint one another’s testimony.
– Generally don’t tell one witness what the other witnesses said.
Evidence Do:• Keep a list of potential evidence.
– 3 types of evidence.
• Keep a running list of the evidence you receive and examine.
• Have a document receipt, tracking, and return protocol (also known as a “chain of custody” procedure).
• Make copies of all documents received.
• Keep evidence in a secure area accessible only to those with a “need to see” it.
• Make your attorney aware of unfavorable evidence.
Evidence Don’t:
• Take custody of original documents or physical evidence without acknowledging receipt in writing.
• Change or alter documents.
• Forget about computers and other digital evidence.
• Throw away documents or other evidence.
– Spoliation.
Investigative Report Do:• Use a format and language suitable to
the audience.
• Use proper names, places, specifics. No
he, she, them, in the parking lot. Name
who by name, and what parking lot.
• Determine who will have access to the
report (need to know) and make
arrangements to limit access to those
individuals.
• Keep in mind that the report may
eventually be read by agency
investigators and/or adversaries in
discovery. Accordingly, the report should
be professional in appearance and
content.
Investigative Report Do:• Understand the concept of “good faith”.
• Attach relevant documents to the report for easy access to the reader.
• Be factual, concise, orderly, specific and clear.
• Research and investigate workplace issues above and beyond those raised in the complaint that the initial investigation uncovered. Investigate those issues separately and report on them separately.
• Determine that disciplinary measures that are recommendable are appropriate to the offense and consistent with measures taken in similar circumstances.
Investigative Report
Don’t:
• Include “irrelevant” information in
the report. Keep in mind that the
report ultimately may be read by
agency investigators and/or
litigants.
• Include opinions. Reports should
be fact driven.
• Include “body language”. That’s
generally an opinion. Even if
something happened – you don’t
know why.
Teri Morning, MS, MBA, SPHR
Teri Morning Enterprises
www.terimorning.com
Mahalo!
Hilton Waikoloa Village Resort
Big Island, Hawaii.