This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.
In part one of this two-part series, we covered five of the most common mistakes that employers make while conducting workplace investigations, including poor complaint mechanisms, ignoring employee complaints, failing to adequately plan an investigation, and failing to be objective while investigating employees. In part two, we will review five additional common—and costly—mistakes.
1. Failure to Conduct Additional Investigative Work
Anyone who has conducted a few workplace investigations quickly learns that in addition to conducting interviews, you should, at a minimum, request, review, and analyze personnel documents and policies. However, depending on the nature of the allegations, there is often a need to do more. This part of the investigation often requires resourcefulness on the part of the investigator.
In many instances, the investigator may find it helpful to visit the work site or another key location. I once worked on an investigation that involved allegations of sexual harassment that had allegedly occurred in the manager’s office at a fast food restaurant. The complainant described a typical office with a desk and door where the manager performed all of his paperwork.
She described behavior that would have occurred in a typical office with the door closed. I visited the site to find that the manager’s “office” was nothing more than a broom closet that had been converted to a small workspace; the door had been removed, and a shelf had been installed so hold a computer and some files.
Although this information would have come out during interviews, the fact that I saw the work area myself made my conclusions that much stronger in terms of my ability to explain them in my report.
2. Failure to Reach a Conclusion
Perhaps the most common mistake investigators make when conducting investigations is that they fail to reach well-reasoned conclusions. Often, investigators rely on conflicting accounts to justify their inability to determine whether the allegations have been substantiated. In the vast majority of cases, an investigator should be able to review and analyze all evidence, make credibility determinations, determine parties’ motives, and reach finding and conclusions.
To reach a decision, investigators will need to rely on the evidence itself and ask: Does the evidence (including information obtained from witnesses or documents, especially those written in real time) corroborate or contradict the facts presented by the complainant? Does this information in some way bolster or refute the claims made?
In a claim involving a relationship between two parties where both parties deny the relationship, you might want to check emails, cell phone records (showing calls and text messages), calendars, or expense reports, among other documents.
I have been involved in numerous investigations in which both parties denied being in a romantic relationship, but the records indicated that they had communicated with each other much more often than would be expected between a boss and a subordinate, that their communications took place during unusual hours (for example, at 2:00 a.m., on weekends, etc.), and that their calendars indicated overlapping non-business events. In that scenario, clear credibility issues existed.
Perhaps more importantly, their story did not make sense and was not inherently believable. Although the investigation did not involve eyewitness testimony related to the allegations, the circumstantial evidence was very strong and justified reaching a clear-cut conclusion.
3. Reaching Legal Conclusions
A workplace investigation calls for factual conclusions. The question an investigator is attempting to answer during the course of an investigation is whether sufficient evidence has been presented to substantiate the allegations (a “more probable than not” standard of proof). Sometimes, investigators may also opine on whether the evidence indicates that there has been a policy violation. The level of wrongdoing (if wrongdoing is found) will dictate the severity of discipline or other remedial measures that need to be taken.
What an investigator should avoid is reaching legal conclusions. Even if an employee has alleged “sexual harassment” or “discrimination,” for example, the job of the investigator is to determine whether there are facts that support the behavior alleged. Whether the facts rise to a level of unlawful behavior proscribed by law is an inaccurate standard for a few reasons.
First, an employer might decide not to take remedial action because the behavior is not illegal. But if an employer waits for the behavior to rise to this level, it is missing the point, both from a legal and business perspective. The goal of a workplace investigation should be to resolve behavioral issues before they become unlawful.
Another reason that coming to a legal conclusion can be problematic is that an investigation does not usually involve many of the elements present in more drawn-out litigation, in which there is typically information collected to determine whether the behavior is unlawful.
Finally, this type of conclusion (that the facts indicate lawful or unlawful behavior) could be presented to a decision-maker later. For example, a jury that reads an investigation report that concludes or indicates that the behavior was unlawful is more likely to find in the plaintiff’s favor.
4. Failure to Draft a Detailed Report
In many instances, an investigator will perform a fair and thorough investigation but will fail to put his or her analysis and conclusions into a formal report. The type of report needed will be case-specific. Sometimes a short executive summary will suffice. At other times the investigator will opt for a brief report and attach summaries of interviews. In many instances, however, it is necessary to draft a full and detailed report.
A full, detailed report should summarize the relevant facts based on the information obtained from interviews and documents (or other investigatory work) and should include a detailed analysis and conclusion section. This section should include credibility determinations, should outline the reasons for reaching a particular decision, and should clearly state the investigator’s conclusion or finding with regard to each allegation.
The most common misstep I see is the failure to draft a report when the disciplinary action taken is severe. If an employee is going to be discharged for wrongful behavior or for violating a company policy, the most fair and appropriate action is to provide a report outlining the details of the investigation, as well as the reasons for the findings.
5. Failure to Close out an Investigation
A mistake I see over and over is a failure to close out an investigation. Anyone who has been involved in a workplace investigation—as a complainant or accused, as a witness, as a supervisor, or as the investigator—knows that they are extremely disruptive to the workplace. After doing reaching findings, the investigator will want, at a minimum, to speak with the complainant and the accused. Be careful with how much information is revealed; at the same time, privacy and confidentiality concerns should not keep an investigator from providing the involved parties with enough information to let them know that the investigation is complete and from providing them with at least a general description of what will happen next.
Keep in mind that this communication should be done in a fair and compassionate way. State your conclusions clearly, but not coldly. And be precise. For example, if your finding was that the evidence simply did not support the specific allegation, but the investigation uncovered learning lessons, relate this information to the complainant. I’ve observed numerous situations in which the investigator simply said, “Your allegations were unsubstantiated.” Period. No nuance, no compassion. The impression left on the complainant, not surprisingly, was “I didn’t believe a word you said.”
The big lessons here are that when you put on your investigator hat (which is different from your other HR hats), you need to think like an investigator. Approach your work with a problem-solving mindset. Be thorough, be fair, be detailed, be precise, and be empathetic in your investigations. That way, you’ll be sure to stay off my “top mistakes” list!
A well-done workplace investigation has many additional nuances.