Solving the Mystery Behind
Conducting a “Flawless”
Workplace Investigation An HR Attorney’s Perspective
Jessica T. Walberg, Esquire
407-418-2300
jwalberg@fordharrison.com
Search for the “Flawless” Investigation
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What constitutes a complaint?
Do I have a duty to investigate?
Who should conduct the investigation?
How should the investigation be done?
Should an investigative report be prepared?
Are there common mistakes to avoid?
How much coffee have you had?
Will you answer all of my questions & not bill me?
What Constitutes a Complaint?
What Constitutes a Complaint?
• Written or verbal communication from employee
“specifically” complaining of discrimination, harassment
or other objectionable conduct
• Employee verbally states he/she has “generally” been
treated badly or unfairly
• Supervisor/manager reports that inappropriate acts or
misconduct have occurred
• Complaints submitted through published policy
• EEOC / FCHR Charge of Discrimination / Lawsuit
What Constitutes a Complaint?
• Subtle statements about workplace or supervisor
• Offhand comment from employee directly to or
overheard by supervisor about inappropriate
conduct that has occurred in workplace
• Comments made outside of workplace between
“friends” (“just between us”, “off the record”)
Duty to Investigate
Duty to Investigate
• Federal & state harassment/discrimination/safety laws impose
legal duty on employer to investigate employee-related
complaints (defenses & mitigation)
• Can include off-duty conduct
• “For Cause” terminations (in employment contracts or CBAs)
require fair & thorough investigations
• Obligations to shareholders may impose duty to investigate
claims to determine or limit potential liability
• “Right Thing To Do” - provide safe work environment
(“happy employees are productive employees, productive
employees are profitable employees!”)
Selecting the Investigator
Selecting the Investigator
• Ability to understand business purpose of investigation &
potential issues it may raise
• Knowledge of policies & practices
• Knowledge of applicable legal issues
• Ability to take thorough, accurate notes which can be
used as evidence
• “Communication fit” with personalities & backgrounds
of potential witnesses
• Comfort level for witnesses (consider if race, age, etc. will
make a difference for potential witnesses)
Selecting the Investigator
• Interviewing skills, including the ability to
identify follow-up questions when new facts or
issues arise during interviews
• Ability to determine when & when not to
maintain confidentiality
• Ability to determine credibility of witnesses
• Experienced conducting investigations
• Consider cost
Selecting the Investigator
• Manager or supervisor
• HR professional (“perfect witness”)
• Private investigator or outside consultant
• In-house counsel
• Outside counsel
Conducting the Investigation
Conducting the Investigation - Strategy
• Determine if Interim Actions Should be Taken
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Temporary transfers of shift or reporting changes
Place accused on leave
Changes for the complainant should be voluntary
Remind everyone that retaliation is prohibited
Conducting the Investigation - Strategy
• Start investigation promptly
- Ellerth and Faragher defenses – prompt, remedial action
• Outline scope & breadth of investigation
• Prepare a timeline, include each step that will be taken &
expected completion date
• Recognize that chronology & order of interviews can
either contaminate or enhance success of investigation
Conducting the Investigation - Strategy
• Prepare an outline of critical issues:
- Ensures all issues regarding each witness will be
addressed
- Ensures a thorough & consistent line of
questioning
- Allows investigator to compare similarly situated
witnesses from a standardized approach
Conducting the Investigation - Documents
• Rules, policies, & procedures
• Personnel files (named individuals & “comparators”)
• Memoranda or notes about incident
• Complaints (internal or external)
• Videotape (security)
• E-mail, Internet, Blogs, Facebook, etc.
• Other potential information sources
Conducting the Investigation - Interviews
• Order of Interviews
- In typical harassment situation
• Complainant
• Harasser
• Witnesses
• Complainant
- In discipline cases for workplace violations
• Employee who violated the workplace rule or policy
• Witnesses
Conducting the Investigation - Interviews
• Location is Important
- Cubicles and open offices are not sufficient
- Quiet, private room is appropriate
• Ground Rules
- Company meeting
- Expect/require honesty, candor
- Lying or failure to cooperate equals independent
grounds for discipline
Conducting the Investigation - Interviews
• Ground Rules Cont’d
- OK for union to participate to ask questions or clarify
– but expect employee to answer
- Will break at end and give union and employee time to
speak privately – come back and add anything at that
time
• Make appropriate disclosures (e.g., who you are, who
you represent, why you are there, etc.)
Conducting the Investigation - Interviews
• Disclose nature & purpose of investigation at
beginning
- Be candid when interviewing person who is focus of
investigation
- Explain to witness that company takes complaints
seriously
• Do not promise confidentiality!
Conducting the Investigation - Interviews
• Stress voluntary nature of participation
- Make clear employee may terminate discussion at
any time
• No retaliation
• Advise that no judgments have been made about
any aspect of investigation, including validity of
complaint
• Just the Facts!
Conducting the Investigation - Interviews
• Begin with open-ended questions (“Funnel Approach”)
• Transition to specific situation at issue
• Give witness opportunity to provide additional
information
• Probe witness with follow-up questions, & ask about
knowledge of any relationships between complainant &
alleged wrong-doer or possible motivations for complaint
or conduct at issue
Conducting the Investigation - Interviews
• Inquire if witness is hostile/friendly to either
complainant or alleged wrong-doer
• Ask witness if he/she is aware of any others who
might have relevant information or evidence
(witnesses)
• Ask witnesses for additional information &
evidence (photos, e-mails, calendar entries, &
other evidence)
Conducting the Investigation - Interviews
• Be an active listener & critical thinker
- “Does this make sense?”
- “Do I understand exactly what happened?”
- “Will the person reading my report understand
exactly what happened?”
• Use your time line to identify discrepancies
between witness’ own story & that of others challenge facts
Conducting the Investigation - Interviews
• Clarify basis for witness’ knowledge of a “fact”
- How do they know?
•Saw it? Heard it? Was involved in it?
- Distinguish between “no” & “I cannot recall.”
- Document carefully for later review - generally
don’t tape record interviews (witnesses are less
forthcoming)
Conducting the Investigation - Interviews
• Prepare formal witness statements or take notes,
as close to verbatim as possible, of facts recounted
to investigation & provide witness with written
statement of his/her interview to verify accuracy
& make any necessary changes
- Witness should sign & date statement
- If this is not possible or practical, confirm accuracy
of notes & obtain initials
Conducting the Investigation - Interviews
Specific to Harassment Complaints
• Was conduct welcomed?
• Does alleged action have purpose or effect of
creating a hostile, offensive or intimidating
environment?
• Is it sufficiently “severe or pervasive” to alter
conditions of alleged victim’s employment?
Conducting the Investigation - Interviews
Specific to Harassment Complaints
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How often did alleged action occur?
How severe was alleged action?
Was alleged action physically threatening or humiliating?
Describe in detail (don’t accept “dirty talk” or
“inappropriate language or conduct”)
• Does alleged action unreasonably interfere with victim’s
work performance?
- Reasonable person standard (a jury of your employee’s
peers)
Conducting the Investigation - Interviews
(Credibility)
• Demeanor - Body language
- How did witness react to allegations?
- Did witness appear credible overall?
• Logic/consistency
- How much detail did witness offer?
- Did events differ from others interviewed?
- Did witness’ version make sense?
• Is there corroborating evidence?
Conducting the Investigation - Interviews
(Recording/Transcribing Interviews)
• Witness may be uncomfortable & less forthcoming
• Florida law requires informed consent of witness
• Once recorder is on, state date, time & place of
interview, name of participants and have witness
confirm on tape his/her knowledge of & consent of
the recording
• Repeat & re-verify consent at conclusion of interview
Conducting the Investigation - Interview
Problems
• Remind them of obligation to cooperate
• Assure them of obligations of confidentiality/nonretaliation
• Confirm that company can take action based only on
information it is able to obtain during investigation
• Interviewer’s notes should confirm refusal to
cooperate & that disclosures were made to confirm
consequences of refusal to cooperate
Conducting the Investigation - Concluding
Interviews
• Conclude interview
- Repeat significant points & ask interviewee to confirm
information is complete & accurate
- Give witnesses opportunity to disclose anything else he/she
thinks might be important
- Cover expectations of confidentiality
- Invite witness to contact you if he/she recalls or discovers
any additional helpful information after interview
concludes
- Explain who should be contacted if employee receives
threats or reprimands for participating in investigation
Preparing the Investigative Report
Preparing the Investigative Report
• Review and finalize notes immediately upon completion
of investigation – while its fresh
• Write as though every word will be second-guessed
(opposing counsel, judge, &jury)
• Prepare summary of facts
•Include facts, not speculation or hearsay
•Where there are discrepancies, give all versions
• Take appropriate action to address conclusions
• Factual findings (possibly recommendations)
Preparing the Investigative Report
• Reach a conclusion
•Who do you believe & why
• Examine objective facts and assess credibility of
interviewees
- There was a violation
- There was not a violation
- You cannot make a determination
Preparing the Investigative Report
• Include background of complaint
• Summarize witnesses’ statements: evaluate their
credibility (based on facts)
• Make factual findings (vs. legal conclusions)
• Mark “confidential” - maintain privileges
• Recommend appropriate action, if charged with doing so
- Direct to Counsel/Senior Management
• Prepare final report in anticipation of discovery
Preparing the Investigative Report
• Were policies, guidelines, practices violated? If so,
was violation serious or minor?
• What has been done in the past with regard to
similar violations (consistency)?
• Are there mitigating or aggravating
circumstances?
• Creative alternatives?
Preparing the Investigative Report – There was a
Violation….
• What is appropriate discipline?
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Disciplinary counseling
Transfer
Suspension
Last Chance Agreement
Demotion
Discharge
Preparing the Investigative Report – There was
Not a Violation…
• Make sure the complainant will not be retaliated
against for raising a concern
• Make sure that the alleged wrongdoer is not
treated differently as a result of the investigation
Preparing the Investigative Report – The Results
are Inconclusive
• Continue to monitor the situation
• Consider possible reassignment
• Consider implementing additional workplace
training on the issue
• Maintain investigation file
• Let parties know of results
• No retaliation
Preparing the Investigative Report – Possible
Conclusions of Report
• There is no evidence to corroborate the complaint
• There is no evidence to establish a violation of
Company policy
• The evidence corroborates the complaint, but
does not establish a violation of law or Company
policy
• The evidence shows a violation of law and/or
Company policy
Determining Appropriate Discipline
• Was a rule or policy clearly broken?
• Was the employee on fair notice of rule and
consequences?
• Has the employee been provided with a fair chance to
explain?
• What has Company done in past – consistency,
consistency, consistency.
• Is “progressive discipline” short of discharge appropriate?
Determining Appropriate Discipline
• To what extent does the employee’s record
warrant mitigation?
• Is there consensus about the level of discipline?
• 18 months down the road will you be able to look
at a judge or arbitrator and say this was fair,
appropriate discipline?
Preparing the Investigative Report –
Communicating the Outcome
• Follow up with both complainant and accused
• Emphasize company’s commitment to policies
and compliance with the law
• Typically not appropriate to inform other
employees about the results of the investigation
Post-Investigation Measures
Take steps to ensure that no retaliation is taken
• Encourage complaining employee to bring all
issues forward in future
• Continue monitoring situation – 30, 60, 90 day
follow up
• Train managers/employees as needed
Common Investigation
Mistakes to Avoid
Common Mistakes to Avoid While Conducting
a Workplace Investigation
• Taking sides
- Investigator must remain neutral & conduct
unbiased, objective investigation
- Applies equally whether empathizing with
complaining employee or defending conduct of
alleged wrong-doer
Common Mistakes to Avoid While Conducting
a Workplace Investigation
• Promising confidentiality
- Breach of contract
- Must be sure to explain confidentiality is
qualified/limited
- Treat as sensitive information - share only with
legitimate need-to-know
Common Mistakes to Avoid While Conducting
a Workplace Investigation
• Failing to Document
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“Minor” complaints often not documented
Relevant documents must be properly dated & signed
Sanitize notes & report before finalizing
Be the “proud author!”
Keep records for three years – will not run afoul of any
laws as typically retention requirement is 3 years or shorter
Common Mistakes to Avoid While Conducting
a Workplace Investigation
• Failure to Actually Investigate
- Do not simply ask witnesses to provide you with a
written account of what happened
- Important to have interactive interviews to assess
credibility & immediately follow-up on issues raised
- Prevents employees from improperly inserting their
own subjective opinions & potentially biased beliefs
into process
Common Mistakes to Avoid While Conducting
a Workplace Investigation
• Failure to Make Conclusions
- “He said - she said” type case, easy to simply state that
no conclusion can be reached
- Important to reach a conclusion based on best
information available, credibility of witnesses, a
determination of who is more likely to be telling the
truth, etc.
- Okay to determine “inappropriate conduct” without
concluding “unlawful harassment” occurred
Search for the “Flawless” Investigation
•
•
•
•
•
•
•
•
What constitutes a complaint?
Do I have a duty to investigate?
Who should conduct the investigation?
How should the investigation be done?
Should an investigative report be prepared?
Are there common mistakes to avoid?
How much coffee have you had?
Will you answer all of my questions & not bill me?
Solving the Mystery Behind
Conducting a "Flawless"
Workplace Investigation An HR Attorney’s Perspective
Jessica T. Walberg, Esquire
407-418-2300
jwalberg@fordharrison.com