How to Conduct Employee Related Investigations
An employee relations problem or a complaint has come up in your practice – two employees got into an argument in the breakroom or an employee complains about a supervisor targeting her based on her race or an employee alleges that she is being harassed by another employee. The first step to resolving the situation is to investigate it. Your method of investigation will play a major role in whether a court finds your business liable. The points below are intended to help you tread carefully.
1. Take immediate and possibly temporary action
What you should do immediately depends on the facts and details of the situation. If there is a risk to your business operations or to other employees or patients, you may want to suspend the employee, with pay or without pay. Another option is to temporarily move the employee to another shift or role within the organization. Be careful when taking immediate action. Although immediate action may diffuse the situation and allow you time to review and investigate the situation, it may also appear as if you are retaliating against the employee who made a complaint.
2. Decide whether the problem warrants an investigation
It may appear that the problem is relatively minor and does not warrant an investigation. Perhaps a simple conversation with the employee will suffice to resolve the conflict. However, more often than not, you should conduct a full investigation. Once again, the way that you handle an employee conflict or complaint and the method and process that you follow may end up being the deciding factor in whether you have to pay large sums of money ultimately in court.
3. Hiring outside counsel to investigate and guide you is smart
This may sound excessive at first glance, especially if the issue or complaint seems relatively minor, but you should consider bringing in a professional. Legal counsel will have a fresh perspective regarding the witnesses and documents involved in the situation. She also may be able to bring a new outlook in determining whether employees and witnesses are telling the truth. Legal counsel will also have a full understanding of the potential legal implications and will bring an independence that an internal investigator simply cannot maintain. Most importantly, an investigation performed by counsel and communicated orally and/or documented between counsel and you is privileged and confidential as attorney-client communication. Attorney-client privilege protects communications between a client and his/her attorney. Employers who hire an attorney and obtain attorney-client privilege are in the best position to protect communications and information from discovery in litigation.
4. Prepare for the investigative process
A good investigation comes out of a good investigation plan. Step one is reviewing the relevant documents in the matter. Perhaps this includes the written complaint from the employee or notes regarding the verbal complaint. Relevant documents include internal policies and procedures. After reviewing the information, prepare a list of issues. You may only have one question – did the situation actually occur the way the complainant said it occurred? On the other hand, you may have multiple questions because you may have to deal with allegations of long-term harassment. In either case, you need to develop a list of questions that you want answered through the investigative process. Step three is to create a list of people to interview - parties involved and any relevant witnesses.
5. The interview process
There are two crucial aspects to the interview process – document everything and ask the right questions. With every interview you should take careful and detailed notes, and you need to ask the right kinds of questions. Good HR interviews involve initial open-ended questions regarding the situation followed by more detailed probing questions. Do not ask leading questions that may put your words in the witness’s mouth. You may want to start each interview by explaining that you are trying to gain information through the process and not looking to take any particular action against anyone. The interview process may lead to the production of more documents.
The way that you ask questions and a witness’s answers to more probing questions in particular will help you understand if the witness is lying. Is the witness consistent in her answers? Does she support her answers with documentation? Does she provide complete answers that make sense? Additionally, you will understand if a witness is lying based on how her answers square with responses from other witnesses. Feel free to ask probing questions based on feedback you have received from other witness interviews.
6. Review, analyze, document
If you choose to perform the investigation yourself or designate another employee to do it, keep in mind that it will not be privileged unless done via attorney-client communication. You should continue to take detailed notes throughout the investigative process regarding what witnesses said and how they reacted to your questions. You should be reviewing your notes constantly to make connections and ask follow-up questions to witnesses. Similarly, review relevant documents in connection to your interviews. Ultimately, the process is a puzzle to gain the answers to your questions, and it results in a memorandum regarding the investigation, the interviews, the documents, and your conclusions.
7. Expect to make room for lies
Putting the puzzle together will also help you determine whether an employee or witness is lying. If only one witness has given you a particular story and every other witness has a different take on the situation, you know that the one witness probably is not divulging the full story. Also, if the documentation does not support the witness’s viewpoint, you will have a sense that the witness is lying.
8. Take action and follow up
Ultimately, you want to use the investigative process to reach a conclusion and take action based upon your conclusion. If you determined that an employee was harassed, you should take action against the harasser(s). If you determine that an employee was discriminated against, you should take action to remedy and correct for any discrimination. Oftentimes your investigation will lead you to the conclusion that nothing illegal actually occurred – that the complaint in question did not have any support. In this situation, you need to sit down with the complaining employee(s) and have a hard conversation – that you conducted a thorough investigation, you spoke to all relevant witnesses, and you could not find support for his or her complaints. You should explain that you took the complaint(s) very seriously and you want him or her to feel comfortable in the workplace, but the complete investigation did not support his or her complaint. Subsequent to this conversation, you should be prepared to follow up with the complaining employee to find out how he or she feels about the previously-complained about situation – have things gotten better, how do you feel about the current situation? Assure her that you value her feedback and her concerns.
Ultimately, your goal in the investigative process is not only to get answers to your questions and address the complaint but to demonstrate consistency and thoroughness in the way you address complaints and employee relations situations. You are looking to show others, including your employees and potentially a court of law, that you have taken employee concerns seriously.
For further information, please contact Aileen Brooks.
Articles distributed by Malecki & Brooks Law Group, LLC are advertisements and summaries for general information and discussion purposes only. They are not full analyses of the matters presented, legal, or otherwise, and may not be relied upon as legal advice.
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