What makes a workplace investigation so good that you just can’t wait to show the EEOC investigator what you did? And you’re like, “Plaintiff’s lawyer, take us to court — please!”
All right, maybe nothing would make it that good, but here are nine things employers can do to ensure that they at least won’t be ashamed of their workplace investigations:
No. 1: The investigator is unbiased and ideally doesn’t have extensive, intimate knowledge about all of the personalities involved. An investigator who knows too much may have a hard time keeping an open mind. That’s one reason why larger companies often send in someone from Corporate to investigate. Smaller companies may find it more difficult to find an investigator with that blissful ignorance. But they can consider bringing in someone from outside, like a lawyer or an HR consultant. If that isn’t possible, then the investigator will just have to temporarily put aside what he knows, to the best of his ability, while the investigation takes place.
No. 2: The investigator doesn’t have a “conflict of interest.” In this context, that means the investigator has authority over everyone involved in the alleged incident, including the authority to take appropriate action against whomever is determined to be the wrongdoer. She should be in a position to “let the chips fall” and to recommend corrective action without having to fear retaliation. For example, you don’t want an employee having to investigate allegations against her own boss. No matter how honest and fair she is, she will be inclined to pull her punches, perhaps out of loyalty or to avoid any “awkwardness” when it’s all over.
No. 3: The investigator knows how to conduct a workplace investigation. Oh, the horror stories I have! Here’s one: Employee accuses supervisor of sexual harassment. “Investigator” asks supervisor whether he did it. Supervisor says no. OK! Case closed! If your investigator is inexperienced, have him read my points 4-9, below. Or pay for him to go to a seminar. You won’t regret it.
No. 4: The investigator talks to everybody who might know something. This would obviously include the accuser and the accused. But it also includes any witness identified by the accuser or the accused. It also includes any witness identified by the witnesses. And any witnesses identified by the witnesses’ witnesses. Yes, this could go on all day long. But don’t be lazy. You don’t ever want to be accused of failing to follow all possible leads. (And they will peter out eventually.)
P.S. If you get an admission or other conclusive evidence, then you may be able to stop before you talk to everybody.
No. 5: The investigator knows the difference between a “fact” and a “conclusion,” and knows that “facts” are better. Which of these tells you what you need to know? (1) “Joey is a sleazebag” (a conclusion), or (2) “Joey grabbed Mary’s butt on Friday, and I saw him do it” (a fact — or, at least, a specific factual allegation)?
No. 6: The investigator knows to review other evidence as applicable. This could include things like personnel records, work schedules, financial records, security camera footage, voice mail messages, and emails and other IT information. And much more, depending on the circumstances. The investigator should not be afraid to ask for help from a qualified expert (such as an IT professional) when she needs it.
No. 7: The investigator frequently refers to the company policy while conducting the investigation to make sure he is following it. Plaintiffs’ attorneys love to get copies of employer policies, and then point out all the ways the employer didn’t follow them. (They refer to this as “shooting fish in a barrel.”) For this reason, if no other, whoever conducts a workplace investigation should frequently refer to the policy as an investigation “checklist.” You may think you have it memorized. You don’t. Nobody does.
No. 8: The investigator maintains confidentiality as much as possible. Perfect confidentiality is not possible — otherwise, how would it be possible to investigate anything? But the investigator can refrain from sharing the information with those who do not have a legitimate need to know. And witnesses should also be cautioned to keep the investigation confidential (if our National Labor Relations Board will allow that).
No. 9: The investigator consults with others as needed during the course of the investigation and in determining what happened. This includes counsel, but it might also include other experienced Human Resources personnel, the employee’s manager and supervisor, “experts,” and others, depending on the nature of the investigation.
Next week, I’ll talk about steps employers should follow in deciding what action to take when the investigation is over.
