Every company – ranging in size from huge Fortune 500 enterprises to small mom-and-pop businesses – strive to handle their employee relations issues in a manner designed not only kept them out of court, but also create a smooth functioning workplace. They want to create a workplace that brings people together with the goal of accomplishing tasks in an efficient, profitable manner.
Unfortunately, this isn’t always what happens. Every workplace – large or small – sees its share of conflict. The key to handling these conflicts with the least disruption is to proceed in a calm and steady manner. The following seven steps help you conduct employee investigations into a workplace problem without creating a bigger issue.
Step 1: Evaluate the Situation
When someone reports a problem, it is human nature for most of us to want try to solve it immediately. We want to get to the bottom of the matter quickly and decisively – strike while the iron is hot. However, only a few situations warrant this kind of spontaneous response. Threatening or violent behavior, for example, cannot wait. Those involved in such an altercation must be removed from the workplace immediately. On the other hand, it’s easier to manage non-threatening situations if you stop, take a breath and develop a well-reasoned plan of action.
Step 2: Create an Investigation Plan
Need to Know
Start by identifying the “need to know” group. These are the people who will be directly involved in assessing the situation and who will have input into how you handle the situation. Try to keep this group as small as possible, so (1) input is manageable, and (2) you can better control the confidentiality of the investigation.
The immediate supervisors of the employees involved should probably be included. These individuals will have background information on the employees’ performance, and will need to participate in any ongoing behavior monitoring you may put in place. If the situation involves a particular area in which a subject matter expert is available, like Safety, for example, you may want to incorporate this person’s views as well.
Next, identify the possible issues. Ask, is there an emotional component to this conflict? Is this possibly due to some past disagreement? Do the people involved have a history? If so, it’s sometimes helpful to start by creating a chronology of related events.
Are company policies implicated? If so, look at the policy itself, to make sure you know exactly what it says. Ask yourself how recently did people involved in the conflict learn about this policy, how consistently has it been applied, and is it fair to hold these people accountable for what the policy says. Finally, keep an eye out for possible legal claims embedded in the conflict, such as:
- Gender and gender identity
- Sexual orientation
- Skin color
- Ethnicity/national origin
- Wage and hour
Documents to Review
You will almost invariably need to access the employees’ personnel files. You may also need to see emails, business reports or other data. These documents give you a foundation upon which to build your investigation, but you should continually seek additional relevant documents throughout the investigation.
Establish a Timeline
Each investigation requires a separate assessment of the time necessary, given the nature of the complaint; the location of the witnesses; and the documents needed for review. Try to set a reasonable goal for completion, keeping in mind that letting any conflict drag on will only make the situation more difficult to resolve.
Step 3: Conduct Interviews
Should you have a company witness present? It depends upon the relationship of the parties involved and also the nature of the conflict. Generally, the more serious the complaint, the better it is to have a witness present. If you do decide to use a witness, describe this person’s role at the outset to put the interviewee at ease.
From your preparation work in developing the investigation plan, you will know the major topics to review. Keep your questions factual in nature: who, what, when, where, how many, etc.
Should you create a list of questions? It depends upon the complexity of the matter under investigation. You want to keep yourself on track, but still avoid being hyper focused on a list of questions to the extent that it discourages witnesses from revealing other points that may turn out to be relevant. You also want to be careful not to give the interviewee the impression that you’re there just to “check the boxes,” but rather s/he should feel that you really are serious about conducting a thorough and impartial investigation.
Conduct the interviews in the following order:
- Complainant. Start with the person who brought the conflict to your attention. Tell him or her that you are conducting a thorough, impartial investigation on behalf of the company, and that you want to focus on the facts. Don’t discount feelings, but don’t allow speculation, rumor or gossip.
- Accused. Remember that it is natural for a person who has been accused of misconduct to feel defensive. Be careful not to convey the impression that you are out to get the accused or have predetermined anyone’s guilt or innocence. Also, assure the accused that the company is conducting its investigation in a manner that will prevent damage to reputations by handling the investigation as confidentially as possibly, and gathering the facts before making any decisions.
- Witnesses. These are the people who have direct knowledge of the matter under investigation. People who saw or heard the altercation. If an email started the conflict, include the employees who received the email communication. Do not include people who have general, non-factually based observations to share.
- Supervisors. Immediate supervisors and any second level supervisors may need to be interviewed, depending upon the circumstances.
Interview Best Practices
Begin each interview with a brief introduction that includes the reason for the interview, and appropriate disclosures. Be honest about the purpose of the interview without breaching confidentiality. For instance, opening remarks could be that the company is investigating certain complaints about unfair treatment of minorities. In such a situation you could say something like, “our company takes allegations of this nature very seriously, and promptly conducts a thorough, impartial investigation to decide the right thing to do” has been effective.
- Maintain an air of confidentiality without making a direct promise. For example, if an agency action or a lawsuit is filed, the company may have to breach a promise of confidentiality in order to defend itself. However, stress to the witness that the information provided will only be shared with management or others on a limited need to know basis.
- Never discuss preliminary opinions or conclusions with anyone while the investigation is pending. Remain neutral and never appear to take sides. This sometimes can be hard to do, but it is crucial. All communications created around the issue must reflect such neutrality.
- Remain focused, and keep the interview on track and moving forward in order to gather as much information as possible. If the witness becomes emotional, take a break.
- Listen carefully and follow up on all matters that arise – even unexpected ones.
- Encourage each witness to contact you after the interview if they think of anything else that might be relevant to the case, and remind the witness of the importance of confidentiality.
- Keep in mind that for incidents of harassment, discrimination and possible retaliation, employers have a duty to protect the safety of the complainant. Employers also have a duty to protect the complainant and participants in the investigation from any form of retaliation.
- Generally, you don’t need to (and should not) tell the interviewee what other witnesses said, except when interviewing the accused or when others have attributed specific statements to the person being interviewed.
- The end of the interview is the perfect time to reiterate any corporate rules and zero tolerance mandates, and to advise that if the investigation finds that the accused committed the offense at issue, he/she will be subject to discipline up to and including immediate termination.
Step 4: Document
Start by identifying a storage/preservation location for your investigation’s findings. This should be a locked drawer, or password protected computer file. All the original documents you used during your investigation should be in this file. There are a few exceptions, like personnel file(s); in a nutshell, only those original documents that are already carefully stored in another location do not need to be in the interview file.
Written statements – to use or not? If you do, the statement should be carefully drafted to include concise statements of facts and conclusions. Be aware that written statements may be subject to later disclosure, so only use written statements when absolutely necessary. Otherwise, rely on your notes.
Step 5: Decision-making
After all the evidence has been gathered and interviews concluded, evaluate and make a determination about the merits of the complaint. Look into the details of statements provided and determine whether witness statements are consistent. Also consider whether any witnesses had reason to be less than truthful. Generally speaking, formulate conclusions based on the totality of the investigation.
Decisions must be supportable by the sum of the findings; in other words, the decision cannot be arbitrary and without basis.
Remember you are investigating violations of company policy, not the law. No documentation related to the decision-making process and outcome should reference violations or non-violations of the law. The only outcome documented should record whether the actions under investigation do or do not rise to the level of policy violation.
Once a decision has been reached, the complainant should be told so he/she understands and is prepared for the ensuing action or lack of action if no wrongdoing has been found.
Step 6: Take Action If You Find Policy Violation
Even in situations where the employer moves quickly to investigate, the company could be liable if it fails to take appropriate remedial action when investigation reveals a policy violation. The appropriate remedial action depends largely on the circumstances, and several factors should be considered: the seriousness and frequency of the conduct; the wrongdoer’s overall employment record; the discipline imposed for other, similar prior cases and for violation of other, similar company policies; and whether other company policies/practices may relate to the situation (for example, a practice of progressive discipline).
Step 7: Circle Back
Provide the investigation and decision-making results only to those people who need to know, and set appropriate times to check in on the complainant and the accused, to make sure there are no recurrences, or new conflicts. Be sure to document your follow-up meetings and include your notes in the file.
For more information about employee investigations, contact our business attorneys Robinson & Henry at 303-688-0944.