When news breaks about an incident that requires a workplace investigation, you need to make some quick decisions about logistics. Dealing with schedules, rooms and perhaps some strong personalities is part of the job. Be prompt and responsive in addressing all complaints, regardless of your opinions about the people involved and their rank in the company.
First, decide whether the employer should take temporary measures to ensure everyone’s safety, maintain productivity and prevent continued incidents of harassment, discrimination or retaliation. Sometimes it’s necessary to separate the complainant and the accused by changing their work hours, assignments or locations. Don’t institute changes that burden the complainant, since that could be considered illegal retaliation.
Second, choose an investigator who can be nonjudgmental and unbiased. It should be someone who doesn’t have a personal relationship with either party or a stake in the outcome of the investigation. The investigator should not be a supervisor of the accused person. Pick an investigator who has strong interpersonal skills, is well-respected and has knowledge of employment laws.
Some companies ask their internal HR professionals or legal counsel to conduct workplace investigations. Sometimes they use a third-party investigator, especially if their internal staff doesn’t have the time, resources or qualifications to do a proper investigation. Explain to everyone involved that the information will remain confidential whenever possible for a thorough investigation. Let everyone know some information may be shared with the accused and others, but that information will be revealed only when necessary. Don’t promise absolute confidentiality to anyone.
Gather all documents related to:
- The company’s sexual harassment and discrimination policies
- The company’s disciplinary policies
- The complainant’s personnel file
- The accused’s personnel file
- Employment contracts and collective bargaining agreements for the accused and the complainant
- Previous complaints made by the complainant or against the accused
- Emails, texts, notes, videotape, audiotape and voicemails regarding the incident or the complaint
MAKE A PLAN
Devise a well-thought-out plan for the investigation before executing it. Write down a witness list, sources for information and evidence, interview questions and a specific process for storing documentation.
The plan should include a detailed schedule for interviews, locations where confidential conversations can occur, and any necessary arrangements for food, water and bathrooms. It might be as simple as reserving a conference room for a day, or it could take more complicated planning to get the right people together in a timely manner. In some cases, employees have a right to have a union representative present during an interview.
The location for interviews should be safe, quiet and discreet to encourage open dialog. Privacy is important.
Don’t let planning and logistics cause a significant delay in the investigation. If the case goes to court, the employer will need to show that they were responsive and willing to take action to stop and prevent harassment, discrimination and retaliation.
Compile a written record of everything that was done in the investigation and any conclusions, including the investigator’s findings about the credibility of the accused, the accuser and witnesses. The record should state what actions the employer took as a result of the findings and who was responsible for those decisions. The investigator’s notes from the interviews must be accurate and factual, including the date, time and length of each interview.
The investigator can record interviews with an audio or video device for the sake of accuracy. But the employer may wish to not use a recorder if it makes individuals less forthcoming. If you do decide to record an interview, keep the device in plain sight at all times and make sure the witness consents to being taped. Likewise, the employer can ask witnesses to submit statements in writing, which may be helpful for clarity and accuracy; this might be problematic if it causes people to withhold information.
Remember your ultimate goal is to find the truth to help the employer comply with the law and maintain a healthy, productive work environment for all employees.