Teri Morning, MS, MBA, SPHR/SPHR-CA

Teri Morning Enterprises

www.terimorning.com

The Do’s and Don’ts

of Conducting an

Internal

Investigation

Hilton Waikoloa Village Resort Big

Island, Hawaii.

Overview

• Employment Law Basics

• General

• An Initial Complaint

• Preliminary Investigation

• Witness Interviews

• Physical and Documentary Evidence

• Investigative Report

In Regards To

Employment Law Do:• Realize that Title VII of the Civil Rights

Act of 1964, and other employment laws may have some implications for almost all investigations occurring in the workplace.

– Including OSHA and safety laws.

• Understand state law, and even local law, including those which may not be employment laws but are applicable to the investigation.

• Include how to make any type of complaint and non retaliation language in your employee policies and training.

In Regards To

Employment Law Do:• Consider;

– A stand alone non retaliation policy.

– Ethics policy.

• Include vendors too.

– Investigative policy.

– Include in the progressive discipline policy, situations that will warrant suspension pending the outcome of an investigation.

• Leave some “room” for discretion.

– Revising the personnel file policy to carve out investigative files as employer files.

In Regards to

Common Law Do

Understand:

• Negligence;

– Hiring,

– Supervision,

– Retention,

– Investigation.

In Regards to

Common Law Do

Understand:

• Assault,

• Battery,

• False imprisonment,

• Invasion of privacy,

• Defamation,

• Malicious prosecution,

• Abuse of process.

In General Do:• Approach an investigation with an open

mind.

• Know that investigations are fact driven.

• Know your role-fact finder NOT employee advocate

• Think of yourself as a “reasonable” person under the circumstances. Consider what a reasonable person would do.

• Set parameters with your boss.

• Know your organization’s personnel policies and keep current with legal developments.

• Have a system of checks, balances and upper level review.

In General Do:• Establish an investigative protocol that

you routinely follow (e.g., how a complaint is documented, who is notified, who in your department undertakes what tasks). Deviations from protocol should be noted and justified.

• Start a chronology.

• Realize not all documentation is good documentation.

• Recognize when you need a separate investigation.

• Be vigilant for retaliatory behavior.

• Know its difficult to do a good investigation if you have no technical knowledge or there is a power imbalance.

• Know to bow out if you are not the right investigator.

• Get professional training in how to conduct a professional investigation!

In General Don’t:• Try Law & Order techniques!

• Assume you know what happened.

• Assume you “know” people.

• Assume you are a good judge of character.

• Make decisions based on your “gut”.

• Overestimate or depend on your knowledge of “body language”.

• Underestimate employees’ understanding of employment laws.

• Fail to realize desperate people do desperate things. Especially in a bad economy.

• Forget that a prompt and thorough

investigation may be your credit

union's best defense against

charges of workplace misconduct—

even if “bad” things are uncovered.

• Wait for a complaint if you become

aware of a workplace situation that

regardless of loss, may violate

policy or law.

• Do nothing.

In General Don’t:

• Be timid; you may have to be

assertive, ever-conscious of the fact

that you are charged with protecting

the credit union.

• Delay or procrastinate in commencing

an investigation; in doing so you may

compromise your defenses.

• Use Law & Order techniques.

Employer Investigations are interviews

not interrogations.

• Be sneaky and try to trap people.

• Promise, intimidate, make deals, or

threaten people.

In General Don’t:

An Initial Complaint Do:

• Document the substance of (if there is) a

complaint and the means by which you

received it; note date, time, and other

circumstances.

• Consider having a form. If there is a

complainant, request the person write

the complaint out firsthand.

• Understand that failure to document an

initial complaint accurately can

compromise your investigation.

• Document and consider investigating a

workplace situation that may violate

policy or law, regardless of whether you

have received a complaint about it.

An Initial Complaint Do:• Determine what policies and/or laws the

matter implicates.

– Failure to do this can lead to a flawed investigation and flawed outcome.

• Make sure your personnel policies contain a description of all your complaint procedures and that the procedure allows for complaints to be made to a number of designated parties within the organization.

– Broad enough to catch all complaints, narrow enough none slip through.

• Avenues of complaint other than direct supervisors.

An Initial Complaint Do:

• Make sure that those designated in

the complaint procedure know how to

address a complaint, take a

complaint, know your investigatory

processes and how to treat a

complaining employee.

• Identify those persons in the

organization who have a “need to

know” of the situation (and when

those persons should be made aware

of it).

• Understand the difference between

“need to know” and “WANT to know”.

An Initial Complaint Do:• Strongly consider consulting with

legal counsel for sound investigative

advice and to establish attorney-

client and attorney work-product

privileges.

– Understand communications.

• Determine whether prompt remedial

action is necessary to prevent a

situation from getting out of hand

and/or to protect individuals.

• Nothing that could be considered

retaliatory towards a person making

a complaint.

An Initial Complaint

Don’t:• Fail to document a complaint or

“constructive notice” of a workplace

situation which may warrant a full-scale

investigation.

• Fail to have a plan and a general

protocol which governs when and how

complaints will be handled by those

receiving them and when and how an

investigation will be conducted.

• Leave managers to take

complaints/investigate without training.

• Ignore complaints.

Preliminary

Investigation Do:

• Determine who is the best

investigator.

– No conflicts of interest.

• Best practice-2 investigators.

– Establish a division of labor.

• Best practice to have a co-

investigator.

–Always have a witness when

interviewing an accused.

• Determine the potential scope and

direction of the investigation.

Preliminary

Investigation Do:• Determine the goals of the

investigation.

• Ascertain the disadvantages of

proceeding with an investigation.

• Anticipate contingencies.

• Establish a timeline for conducting

the investigation.

• Realize good investigations take

some, often lots, of time.

• Investigate as policy implications

rather than law unless instructed

otherwise by legal counsel.

Preliminary

Investigation Do:

• Create an investigative file. Keep

out of personnel files.

• Recognize investigation files are

generally not personnel files - unless

you make them so through their

treatment.

• Compile a list of potential witnesses

and preliminary questions.

• Determine the order in which to

interview prospective witnesses.

Preliminary

Investigation Do:• Compile a list of potential

documentary and physical evidence.

• Review personnel files of the complainant and others identified in the complaint.

• Determine whether any persons identified have been the subject of prior investigations; if so, review investigative files.

Preliminary

Investigation Don’t:• Proceed without a plan and an

assessment of the situation.

• Delay in commencing the investigation.

– Some workplace investigations

(harassment) require you to be

“prompt.”

• Attempt to sway the outcome of the

investigation.

• Attempt to come to a conclusion after

interviewing each person.

• Destroy anything that might be

evidence.

Witness Interviews Do:

• Determine who should attend the

interview.

– Matching the demographic profile.

• Determine where and when to hold

the interview(s).

– Determine the “setting” of the

interview (e.g., formal, informal,

from behind your desk, at a

conference table, in adjacent

chairs). Authoritative?

Witness Interviews Do:• Consider asking the person making

a complaint/subject of the complaint if they are comfortable with you as investigator.

– But only if you HAVE other investigators.

• Anticipate questions and concerns of the witness; educate as to the process to put anxious witnesses at ease.

• Make sure you are prepared (note pad, copies of policies, cup of coffee).

– Give witness a note pad.

Witness Interviews Do:

• Establish and communicate the

ground rules for the interview;

retaliation statements, tape

recording allowed or not allowed),

opportunity for review and

correction of interview notes, etc.).

– Determine if an introductory

script is warranted.

– Determine if a review of any

policies is warranted.

– Use silence effectively!

Witness Interviews Do:• Prepare a generic list of questions

– Stick to the 5 “W”’s and a “H”; Who, What, When, Where, Why and How.

– Prepare a list of questions tailored to the specifics of the investigation. Determine how to contact prospective witnesses and what to tell them initially.

– Consider maps (1 per witness).

– Site visits.

• Vary your questioning technique to avoid redundancy, monotony, and predictability.

• Remember to have the witness identify other potential witnesses.

Witness Interviews Do:• Take accurate, detailed notes.

• Formalize (e.g., type, correct) interview notes promptly after the interview; your notes should look “professional.”

• Allow witness to review and correct interview notes if warranted.

• Have witness attest (by signature) to the accuracy of the notes and to the fact that he or she has had the opportunity to review, correct, and expand upon them.

• Use body language for a baseline.– Become a critical observer.

• Let the witness leave without their knowing how to contact you.

– 2 cards; 1 for them, the other for anyone who pressures them.

• Forget that your interview notes may become evidence in an investigation or lawsuit: they should be “professional” in appearance and substance.

• Express any opinions or agreements.

• Record any opinions or any subjective assessments of credibility.

• Make determinations on body language.

• Fail to educate ALL about retaliation.

Witness Interviews Don’t:

Witness Interviews Don’t:• Assure the witness that his or her

statement will be kept in strict confidence; ultimately, you may have no control over the disclosure of the information presented. Instead, communicate that only those with a justifiable “need to know” will have access.

• Intimidate or threaten witnesses; coerced testimony can be more harmful than no testimony.

• Conduct “group” interviews. Witnesses should be interviewed one at a time so they do not influence or otherwise taint one another’s testimony.

– Generally don’t tell one witness what the other witnesses said.

Evidence Do:• Keep a list of potential evidence.

– 3 types of evidence.

• Keep a running list of the evidence you receive and examine.

• Have a document receipt, tracking, and return protocol (also known as a “chain of custody” procedure).

• Make copies of all documents received.

• Keep evidence in a secure area accessible only to those with a “need to see” it.

• Make your attorney aware of unfavorable evidence.

Evidence Don’t:

• Take custody of original documents or physical evidence without acknowledging receipt in writing.

• Change or alter documents.

• Forget about computers and other digital evidence.

• Throw away documents or other evidence.

– Spoliation.

Investigative Report Do:• Use a format and language suitable to

the audience.

• Use proper names, places, specifics. No

he, she, them, in the parking lot. Name

who by name, and what parking lot.

• Determine who will have access to the

report (need to know) and make

arrangements to limit access to those

individuals.

• Keep in mind that the report may

eventually be read by agency

investigators and/or adversaries in

discovery. Accordingly, the report should

be professional in appearance and

content.

Investigative Report Do:• Understand the concept of “good faith”.

• Attach relevant documents to the report for easy access to the reader.

• Be factual, concise, orderly, specific and clear.

• Research and investigate workplace issues above and beyond those raised in the complaint that the initial investigation uncovered. Investigate those issues separately and report on them separately.

• Determine that disciplinary measures that are recommendable are appropriate to the offense and consistent with measures taken in similar circumstances.

Investigative Report

Don’t:

• Include “irrelevant” information in

the report. Keep in mind that the

report ultimately may be read by

agency investigators and/or

litigants.

• Include opinions. Reports should

be fact driven.

• Include “body language”. That’s

generally an opinion. Even if

something happened – you don’t

know why.

Teri Morning, MS, MBA, SPHR

Teri Morning Enterprises

www.terimorning.com

teri@terimorning.com

Mahalo!

Hilton Waikoloa Village Resort

Big Island, Hawaii.