Litigation attorneys know there is an art to the opening statement, direct examination, cross examination, and the closing argument. Similarly, there is an art to conducting an internal investigation of an employee complaint.

Directing interviews in a timely manner is vital, as complaints of harassment are clearly time-sensitive, and a delay could imply that the company is apathetic. Because time has a way of erasing particulars that could be pivotal to the investigation, initiating the internal investigation as soon as possible also helps to ensure that all parties remember facts and details accurately.

Too often, even the most talented human resources professionals and astute members of a company’s legal team approach the matter as a case in controversy, making the interview seem like a cross examination. In other instances, the person making the complaint is instructed to “tell me everything that happened.” The complainant’s story is repeated by the investigator to the alleged harasser, who is asked, “What do you have to say to this?” This is a style of questioning that does not lead to effective fact-finding.

Although an investigator should ask open-ended questions, there needs to be a framework that allows both the complainant and the employee accused of harassment to respond in a specific way that elicits key issues and provides the investigator with a basis for follow-up inquiries.

A good way to begin is to approach this as one might start a conversation, rather than jump into who, what, where, when and why.

Some suggestions:

  • Sound appreciative. “We’d appreciate it if you would provide some further information about your complaint, such as where you were at the time of the incident?”
  • Use non-accusatory language. Rather than asking about witnesses or evidence, ask: “Did you notice if there were any other employees or customers within earshot?”
  • Ask if the employee “remembers,” so that they are not embarrassed if their exact response is not on the tip of their tongue. “Do you remember if you responded to the statement (or physical action) in any way?”
  • Allow some leeway for additional information. “Is there anything else you think is important to share that might help in looking into this matter?”
  • Take your cue from the information that you are receiving. If the employee has shared something they think might help, follow up. “In what way do you feel that relates?”

Avoid Any Suggestion of Bias

Sometimes, internal staff can be too close to a situation. They may work regularly with the complaining employee or with the alleged harasser. At a result, an investigatory report may be questioned at a later date as being biased because of a perceived relationship with one of the parties. Effective strategies to avoid any suggestion of bias include selecting an investigator with no personal or professional connections to either the complainant or the accused; having a review process in place where findings and conclusions of the investigation can be reviewed by an impartial party; or using a neutral or third party, such as an external investigator.

The parties should not be told that the matter is “strictly” confidential. Instead, both the complaining individual and the accused should be advised that the investigation will be conducted in a manner that is as confidential as possible. Both parties should also be made aware that they may need to be contacted at other times during the course of the investigation.

The investigator is responsible for being an avid, but objective, listener, avoiding statements like, “I definitely believe you,” or “That doesn’t really make sense to me,” or “Why were you in that situation?” Investigators should use statements that are neutral and focused on factfinding. As a starting point – to the complainant: “Thank you for coming forward; please be assured that we take your complaint seriously and will conduct a thorough investigation.” To the accused: “Please be assured that we are commencing the investigation with an open mind and very much want to hear what you have to say.”

Don’t Make it an Interrogation

A workplace investigation is not an interrogation of the alleged harasser. The investigator must resist the temptation to corner an employee into a Perry Mason-style “I did it” confession. While there may be instances where an employee does acknowledge responsibility for some or all aspects of an accusation, such acknowledgment should be elicited through non- accusatory skillful questioning. An experienced investigator might ask, as example, if there is any background information that they believe is important to the investigation. This allows the accused an opportunity to provide additional details.

In addition to the complainant and the accused, witnesses to the incident(s) must be interviewed to ensure all necessary information is gathered. Further relevant supporting documents should be collected – including emails and chat messages – to help establish facts and corroborate statements.

Once completed, the investigator submits a factual report to human resources or the relevant decision-maker in upper management. Depending upon the role of the investigator (which is decided in advance), the report does not usually recommend what, if any, remedial actions should be taken, based on the investigation.  Rather, the appropriate internal manager / decision-maker will utilize the report as a basis for making their decision. Company policies may dictate the particular type of discipline (if any) to be implemented. Appropriate actions based on findings might include disciplinary measures, mediation, or training.

Thorough factfinding ensures a fair and accurate internal investigation. In the absence of this process, incorrect steps might be taken, opening a business to risk and/or liability. A commitment to taking complaints seriously sends a message to employees that the company is fully vested in safeguarding their rights and fosters a comfortable and positive workplace environment.

This article was  prepared by the Law Offices of Helene Horn Figman, P.C. for the publication, “Today’s General Counsel”.
https://todaysgeneralcounsel.com/how-to-conduct-a-fair-and-accurate-internal-investigation-of-employee-complaints/
It does not constitute legal advice and is presented without any representation of warranty whatsoever.

Attorney Helene Horn Figman combines specialized legal knowledge in employment law with the skills and perspectives uniquely suited to Human Resources Consulting www.figmanlaw.com

Information about her anti-harassment and anti-discrimination education programs can be found at www.workplaceawarenesstraining.com

This article has been prepared by the Law Offices of Helene Horn Figman, P.C. for general informational purposes only. It does not constitute legal advice and is presented without any representation of warranty whatsoever.

LAW OFFICES OF HELENE HORN FIGMAN P.C.
Human Resources Consulting and Employment Law Compliance
45 Bristol Drive Suite 207
South Easton, MA 02375
hfigman@figmanlaw.com
www.figmanlaw.com
(508) 238-2700

This law office does not provide tax counsel, accounting advice or employee benefit guidance.