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Conducting Workplace Investigations for Better Businesses

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Conducting Workplace Investigations for Better Businesses

This module provides an overview of the skills needed to conduct thorough, effective, and actionable workplace investigations. Participants will learn how to sift through a variety of material using best practices and clearly present results that businesses rely on when making important decisions. The basic questions an investigator might have will be addressed: what constitutes a complaint, when to investigate, who should investigate, and how to investigate. It also addresses issues of confidentiality, provides tools to better determine witness credibility, and underscores the necessity of unpacking one’s own biases prior to undertaking an investigation. This CLE will benefit in-house and general counsel, third-party attorneys who regularly conduct investigations, HR personnel, and anyone else involved in determining who did what at work.


Kristen Prinz
Founder and Managing Partner
The Prinz Law Firm


Kristen Prinz: Hi, everyone. Thanks for joining me today for this Workplace Investigation, CLE. I am Kristen Prinz, founder and managing partner at The Prinz Law Firm. We are an employment law firm that is based in Chicago. So, as I said today, we're going to be discussing workplace investigations, when they should incur, what would constitute an employee complaint. Some of the key concepts of an investigation, how to prepare for an investigation, how to help your clients manage resources, how to create an investigation plan, how to conduct the investigation, and then how to report back to your client when an investigation is complete. We'll be going through all of that today. If you have questions, you can always reach out to me after the CLE, but hopefully I will address most of them through this program today.

  I'm going to start by discussing what constitutes an employee complaint. This is really a broad topic, and it causes a lot of confusion for employers because oftentimes complaints are really disguised as off-the-cuff comments or requests for advice and managers and employers need to be much more aware these days of what could constitute an employee complaint. For example, an employee who casually mentions to their supervisor, that a colleague sent this employee crude and suggestive instant messages could be considered a report. And certainly even if it's not a report or if it's not a complaint, it is something that should be investigated. Another example would be a manager passed over an employee for a promotion in favor of another employee and the employee who did not get the promotion reports that they think it might be due to their race. That's even a stronger example of what would be considered an employee complaints. And it's certainly a situation where you can advise your client an investigation would be helpful to determine how to respond to this issue.

  Some situations are a little bit more casual. For example, a department supervisor can be meeting with another supervisor and mention that one of the supervisor's employee might be using the corporate credit card in violation of company policy. That is something that should go to HR or to legal and should be investigated. One of the more common instances you'll see is just a general lack of positive interaction between employees. For example, if a receptionist reports that the office manager talked down to the receptionist, it could be just some one off situation, but it's best to at least look into it. And an investigation does not have to be widespread. It can be very narrow.

  Even minor or seemingly innocuous comments can be considered complaints after the fact, you do not want your client down the line, coming back to you when they're being sued telling you that they didn't realize the employee's comment was a complaint that should be reviewed and investigated. So, this is a good opportunity to advise your clients that when people are making even seemingly casual complaints, which I've seen a lot, I've heard situations where someone in HR says, "Well, this employee came to me. It wasn't really a complaint, but they did tell me, for example, a woman told me that she was being left out of activities because she's not part of the boys' club. That's a complaint. And really there should be some level of investigation. So, even when the employee says it in a way that it's not reporting any bad action, it still warrants at least a review of the facts because in this day and age, those sorts of things can easily boil over and become serious liabilities for your client.

  Some helpful tips to help your clients discern what is considered a complaint. Is the behavior discussed something that the company can be sued for? So when people are bringing comments or behaviors that exclude them because of gender or race or a disability or any protected class, that is something that could present a liability for your client. The next question to ask is, does the behavior impact the ability of employees to perform their jobs? So, certain behaviors just become very distracting for employees, even things like gossip, that's widespread within a department, something that could be an opportunity to investigate and address through some coaching.

  The next question that your clients should be asking themselves, how many employees are impacted by the behavior discussed? The more employees that are likely to be impacted, the more important to quickly address the issue. And then what is critical to ask for your, at least for your client, I think it would be critical for them, is how is employee morale impacted by the behavior? The longer behavior is ignored, the more likely employee morale will be impacted and I mean that in a negative way. So, this is certainly an opportunity to engage with your client and really look into whether things are being appropriately addressed.

  So, you can let your clients know that any employee reference to another employee or another person, even a vendor or a customer or any of that, any of protected class or any information that could sound harassing, hostile, discriminatory, all would be negatively impacting any protected class should be considered an employee complaint. I think sometimes people get confused because if a client is engaging in negative behaviors that could be considered harassing or discriminatory or hostile, the employer still has an obligation in many states to address that behavior. So, even if they think, "Oh, there's nothing I could do." At least an investigation should be conducted to determine whether any steps really can be taken to address the behavior. Keep in mind that an investigation can be a simple cursory inquiry or it can be a lengthy exploration of the facts. Responding to situations swiftly will help clients ensure their workplaces are free from discrimination, harassment, inequality, and will thereby reduce the risk of litigation.

  Keep in mind that the word investigation itself can seem pretty daunting to clients. It sounds like a big project. It can be a bit overwhelming, but an investigation really involves interviewing witnesses, reviewing relevant documents and determining whether and how the company should act. It really can be as simple as asking a few questions to one or two employees, but no matter what it provides an opportunity to act on the basis of facts and evidence rather than assumptions, misinformation, or in the worst case biases. The point of an investigation is to avoid jumping to conclusions. And the reason why your client would want you to do the investigation and not just conduct it using internal employees is because of exactly they're wanting to avoid biases and avoid jumping to conclusions.

  Remind clients that investigations really need to be conducted in good faith with some level of transparency. Obviously confidentiality will be discussed later in this program, but you want to have some transparency, so that people can have trust in the process. And the process should be in alignment with the company's written policies and procedures, so that you're reinforcing those things instead of acting against them. And of course, all employees and all participants in an investigation should be treated with respect.

  Before any investigation begins, there should be an assessment of the investigation team. Obviously, if your firm is the investigation team, I trust that you will be very aware of unconscious bias and will conduct an investigation as without opinion, without bias and will make sure that there are no prejudgments going into the investigations. If your clients are doing their own internal investigations, please advise them to do some reflection on whether the team could be exercising some unconscious bias in the investigative process. There's a lot of research about this and employers do need to be aware that an investigation that really starts out from the beginning looking biased, can end up becoming a greater liability instead of minimizing the liability, which is really the reason, one of the reasons why you want to have the investigation, to minimize liability and to hopefully improve the workplace culture.

  Make sure that whoever's doing the investigation would approach a person of color the same as someone who's Caucasian, will not treat people differently because of a disability and will not let gender influence an investigation either. Also be mindful that many times participants in an investigation might not align with traditional gender stereotypes or professional stereotypes. And so, make sure none of that is impacting the investigation. One way to protect against bias is obviously to diversify the investigative team and also to consistently undergo training. Hopefully, this training we'll help you in that process as well.

  Before you start any investigation, it is important to define the investigation scope and the examples I gave you earlier, there's a wide range of complaints that would require different levels of investigation. So, you would really need to be thinking, does this complaint implicate more than two employees? Meaning are there like bystanders who are impacted? Are there other employees who should be questioned? Does the complaint involve another type of stakeholder, like a board member, a vendor, a customer? Does the complaint refer to one incident or a series of incidents? This is important because sometimes things start out as referring to one incident, but even a very cursory investigation might show that there's a series of incidents that need to be addressed.

  Has the reported party had any history of complaints? Again, you can't get biased by the fact that an employee may have had a history of complaints, but it is important to look at that when you're looking at the entire picture. The next question to ask yourself, in terms of defining the investigation scope is what are the modes of communication that were used in the underlying conduct? Meaning, was this oral interaction, was social media used, was a company computer used or email server used? The more modes of communication used or implicated in the complaint, the more digging that an investigator will have to do to really assess the extent of the situation and whether or not there was any policy violation or wrongdoing.

  Next, what is the level of risk exposure to the company? This can be determined based on the level of the parties involved. Clearly, if you have a C level employee engaging in behavior that exposes the company to risk, that might be a higher level of risk. At the same time, if you have a supervisor, even of entry level employees who is engaging in rampant, negative behaviors that are discriminatory or harassing or hostile, that can also lead to a very serious liability risk, such as a class action risk. When you're taking that into account, obviously that's going to help define who needs to be spoken with, how many people, how careful you need to be about protecting confidentiality through the process.

  You also need to ask yourself what company policy or policies are implicated. Now, sometimes you have many policies implicated, and sometimes there's very discreet issues that only involve maybe one policy or even no policies, but the behavior just doesn't meet the standards of conduct that the employer wants to have enforced. Make sure you're advising your clients to always be cautious about dismissing complaints out of hand. This is kind of the most common thing. It goes back to what I said earlier about sometimes complaints are really disguised as just casual conversation and managers and HR professionals especially need to be very, very careful that a complaint disguised as an off the hand comment should still be investigated.

  Seemingly trivial grievances can really degrade into a hostile environment. And especially if you hear it, it sounds trivial and you don't really know how widespread it is. So you blow it off and don't investigate. That's when things can really come back and hurt one of your clients in the future. Encourage your clients to notify you even if they want to handle investigations in-house. It's important to encourage them to notify legal of any complaints that were received. This can help avoid future problems because hopefully you can advise them and minimize any potential risk.

  So the next step in a workplace investigation is to really define the process for your investigation. It's best if your clients have a process in place for assigning an investigation internally or externally. And I mean, it's best if they have a reporting function and also a system in place for how they like to conduct investigations. Many times, especially if it's a larger company, we would really encourage that the client have in place an investigation process that helps make people feel more comfortable with the fact that if an investigation occurs, that it's going to follow a particular path. The risk of liability should be a factor that helps your client determine whether the investigation should be internal or external. Clearly with greater liability exposure, it's best to have an independent third party, like a law firm, conduct the investigation.

  Also make sure your client understands that internal investigations can have really a negative effect on culture and relationships. For example, you can have employees who are friends that maybe you don't even realize are friends and a complaint comes in about one of them and the other one ends up doing the investigation. That sort of thing is common, whether it's a large company or a small company. And the reason I say it's common is because oftentimes even amongst different departments, employees will work together and develop relationships. And it might not be as obvious to management who has a friendship with who. So, having the wrong person be in charge of an investigation, not only can create liability risk, but all also, it really defeats the purpose of the investigation. The purpose of the investigation is to find out the truth and address breaches or violations of company policy. Towards the end, your client will need to decide then who is responsible for the investigation. If you're the outside investigator, who are you going to report to on this? Is your client going to be human resources or the internal legal department?

  Once that's decided you need to come up with a plan for how you're going to gather information. It's important always I think in this day and age, to help your clients manage resources through these processes. You can let your client know that having a very clear scope of investigation that limits the number of people who need to be involved, will help minimize the resources necessary. Witnesses can be ranked based on who has most direct access to relevant information and less critical witnesses might not need to be interviewed at all, depending on what the initial findings are. You also could help your clients manage resources by identifying and narrowing document sources.

  Many complaints from employees are related to oral conversations, and it might be hard to find much more. It is a good idea to still do maybe a cursory email search using search terms, but many investigations these days, because so much happens over the internet, many times you will need to be looking for hard copy files, email, cell phone, text messages, voicemails, and really looking at a broader range of custodians who are the users of the technology. Of course, always keep in mind that you should start with the highest priority conducting investigations by focusing on the participants with the most access to information and the document sources that are most likely to have relevant information, will help you help your client manage resources.

  Next, in my office, we always create an investigative, excuse me, investigation plan. And in doing so, we ask ourselves, what are the issues that must be investigated? So, start with the complaint, or even your idea of what the complaint is? What is the time period in which the investigation must be completed? We always advise, let's try and complete investigations as swiftly as possible because the longer things drag out, the more risk there is of gossip or negative repercussions of an investigation. I've seen the lengthy investigations become problematic in and of themselves and actually become the subject of new complaints from employees. Then, as I said earlier, you always want to have in mind, what are the internal policies or relevant laws that are implicated by the complaint. Make a list of who the witnesses are. So, obviously you need to think about who made the complaint, who the complaint implicates or is about, and then are there witnesses to any statements and if not witnesses, are there other people that interact with the person who was the subject of the complaint that might also have relevant information?

  Typically, we would try to first interview the complaining party and next interview the party who's the subject of the complaint. No matter what the order though, we do advise, that you should be making every attempt to interview witnesses as closely together as possible. You also want to interview the accused party usually pretty early on. So, that's why typically we say, first the complaining party then the accused party. You do not want to go into an investigation with a bias against any particular party. And oftentimes if you interview a slew of witnesses before you get to the person who is implicated by the complaint, you might already by that point, have formed an opinion that is going to impact the investigation.

  Through this process, you should also decide where interviews will be conducted. In the past, we used to always say that interviews should be conducted in person, in a private location, oftentimes offsite of the work site and at the site of, for example, our office, the legal's office. Now, in this day and age, especially with things like COVID, we are much more accommodating in terms of where the investigations should take place. Zoom investigations have been very successful for us. The key is making sure that the person who's being interviewed is in a private room, is alone, is not taping anything, is not having anybody listen in.

  And finally, you need to decide what documents should be reviewed and where you're going to need to search to find appropriate documents. Once you have those preliminary questions answered, you can start identifying the most crucial documents. Typically, we do start first with the review of electronic data and documents, so that you can get a sense of what's out there and was anything said in writing that clearly violates any policy or regulation. Next outline the witnesses, try to again, focus on the witnesses that are going to have the most relevant information. And under the name of each witness, identify the information that you're going to try and seek from each witness. Meaning did this witness actually experience the negative behavior that was reported? Did this witness see the person engaging in negative behavior? What was this person's interaction? How were they relevant to the situation? And did they take any steps to address it?

  We generally like to outline issues that you're going to address in questioning instead of writing a specific script. Although I do have colleagues who do write full scripts and follow that in an investigation. The important thing is use open ended questions and make sure that you avoid leading any witness. This is not a cross examination. This truly is a fact finding mission and make sure that you know what documents will be required for each witness. In conducting the search of electronic information, keep it of mind that harassment through electronic channels has become a significant feature in employee complaints and employee lawsuits. So, you might want to start pretty broad in terms of what you're going to look for in electronic communications.

  What are the processes and procedures your client has to observe to search electronic information? Hopefully it's their policy, hopefully it's your client's policy that your client owns all materials on its equipment, meaning its computers and all information exchange on its communication platforms, such as email or slack or text messages if your client is actually issuing the telephone equipment as well. And so long as they have that, then your client's employee should not have any expectation of privacy and should understand that they could have their email or electronic communication search at any time.

  Keep in mind. In this day and age, we have a lot of different means of electronic communication and devices. So, you might need your employer, excuse me, your client to give you access to emails, instant messages, slack, computer servers, employee devices, such as phones, laptops, and tablets. Depending on the nature of the complaint, it might be just a cursory review of search term on each device, that might be enough. In some circumstances though, you should advise your client that an expert in this area might be necessary. It's oftentimes good to use an external expert to conduct the keyword searches and willing to do a thorough forensic search of the electronic communication materials.

  As you get ready to start the investigation, you should think about the schedule that you want to conduct everything within and then start scheduling or having scheduled the witness interviews. As I said earlier, it is best to usually start with a complaining party, so you have a good idea of exactly what you need to investigate. To the greatest extent possible, you are going to want to ensure that interviews are scheduled as closely as possible together to minimize witness interactions between interviews. You do not want to be feeding the company rumor mill. You don't want to be giving people an opportunity to prepare statements with each other. Prior to each interview, address whether the interview will be accompanied by a representative or colleague.

  We typically advise clients that an interviewee should not be allowed to have outside representation during the interview. But in some cases you have a union employee. Obviously they are allowed to have a labor representative present, like a union steward. And so, you don't want to make an across the board determination that no one should have any representation. The point being that generally, you're not going to advise a client to let employees have representation during an investigation interview. All interviews should be scheduled during work hours. If there's a very private place, then they can be on employer premises. If that's not possible, or if we have concerns that it won't be possible to preserve people's confidentiality, if it's on the client's premises, then you will want a find a neutral location, for example, your legal office or some independent office that you can use.

  And, as I said earlier, we typically in the past always preferred witness interviews to be in person, especially when we were interviewing, for example, the complaining party and the party about whom the complaint was made and that would be in a private office or a conference room. We have so many horror stories from these types of things where maybe clients didn't fully think through an investigation. For example, I am aware of a situation where an employer wanted to conduct a thorough investigation. An employee made a complaint about sexual harassment and the employer's in-house team interviewed the witness, the complaining witness, in a conference room that was all glass windows in an open office space. So, all of this woman's colleagues could see her being interviewed in this room. She made a complaint about sexual harassment. It was highly emotional and she felt that it was not in good faith and maybe even done in retaliation to dissuade people from making complaints about the person who the complaint was about.

  I'm not sure if that was the case or not, but the point of the story is, really be very mindful that even the place where the investigation takes place, can implicate some other problems for an investigation. So, you do really want to be careful that the investigation does not look like it's at all fraudulent or that any sort of predetermined outcome is already has been determined prior to the start of the investigation. If you are making a recording, so if you're conducting the investigation and you're making a recording, make sure you notified the witness. And if you're in a state like Illinois, that does have two party consent, make sure you obtain ascent from the witness. If the company that you are working for, if your client prohibits recordings in the office, make sure that is also clearly communicated. And whether you're making a recording or not, you should always advise the parties being interviewed that you are not consenting to a recording.

  As I said before, offsite locations can be a good tool for privacy and also limiting disruption. And that might encourage better witness participation. But again, if you can only do it via Zoom or some other electronic means, you certainly can do so, just make sure that you are developing proper report at the beginning of the investigation interview, because it is a little bit harder to really make credibility determinations and assess the witness when you're on screen. I'm sure it's possible, but it's just a little bit more of a challenge.

  So, the next step we'll talk about is conducting the actual witness interviews. In my office, we always start with an opening summary or kind of an opening statement in an investigation interview. And that pretty much all the time would include thanking the witness for participating. This is regardless who the person is, whether it's the complaining party, the person who was reported, or just a witness, you always want to thank them for participating. Let the person know how important it is, how critically your client takes these things. And especially if it's a complaining party, tell that person that your client appreciates the person raising the issue, takes the issue very seriously and really wants to find out the full scope of the facts through this investigation.

  In any witness interview, if you are the investigator, you do need to explain your role as an investigator, representing the employer in determining the facts surrounding the complaint. Explain that you, or if you have somebody else in the room with you, will be taking notes. Ensure that the witness understands that the employer takes this matter at hand very seriously. Emphasize, repeatedly emphasize this is a fact finding session. You are here to gather the facts and make a determination. It is not a discipline process. Remind every employee who participates in an investigation that retaliation for reporting an issue or participating in the investigation, is strictly prohibited. And this is very critical. You want to say if that person feels that anything has happened, that it should be reported immediately.

  Inform every witness how important it is to keep the matter as confidential as possible. You should also be informing the witnesses that you will make every effort to protect confidentiality, but also explain that neither you nor your client can guarantee confidentiality. But at the same time, you're going to ask the witness not to discuss the matter with anyone other than you, the investigator, and try to let the witness know how long you suspect the process will take.

  When you're opening the witness investigation interview, try to avoid making any promises of an outcome. Especially when you're talking to the complaining party, you need to be very clear that you cannot promise any outcome. Make every effort to avoid insinuating or alluding to any possible determination. Do not make accusations against the witness or any other party throughout the process. Sometimes, we are tempted when you're talking to the complaining party to nod your head or give indications that you agree or that the person did something wrong, the other person who was reported did something wrong. Do your best to avoid this, maintain the poker face throughout. Avoid statements of judgment if you can, okay. And empathy, of course we encourage empathy, but insinuations, especially insinuations of guilt or innocence should be avoided.

  Going back to the issue of confidentiality, at the start of the witness interviews, you're going to caution everybody, anybody that you're speaking to that the organization expects confidentiality. But even though it cannot guarantee that it will provide confidentiality. No matter what that you are, you do expect that witnesses should not discuss the questions they were asked or information they shared with the investigators or the subject matter of the investigation while the investigation is pending.

  Let the people know, let the witnesses know that they will be notified when the investigation is closed. Placing an emphasis on confidentiality should ensure that witnesses feel that you're going to be impartial. That you're really trying to protect everyone and protect confidentiality. Also, the whole point is meant to try to prevent witnesses from matching versions of events, or also prevent retaliation on employees who maybe disagree with what happened. Employees that do not respect confidentiality, should be disciplined in accordance with the company's policies, but keep in mind, it is very difficult for employees to maintain confidentiality and it really is on the investigator to do everything possible to protect the integrity of the investigation.

  Now, there's a lot of case law that most of these workplace investigations are not protected by attorney client privilege. But when you are advising your client on the investigation or on things that you've found through the investigation, that should be protected by attorney client privilege. You should consult with your client on this and what steps you're going to take to protect any attorney client privilege throughout the process. And make sure that you tell witnesses that their statements are not going to be subject to complete confidentiality and you can't promise them anonymity, even though you will do your best to minimize the disclosure of any information found through the investigation.

  All witnesses should be treated with dignity. So when you're doing the complainant accused party or witness interviews, keep in mind that everyone should be treated with courtesy and dignity, no matter what their role in the investigation is. I did mention earlier that we typically like to start the process by interviewing complainant, make sure that we have a really thorough understanding of the scope of the complaint and what we will be looking for within the investigation. This is not a hard and fast rule, but generally I like to say that the second interview or interview should be with the accused parties. This helps get the perspective early on, instead of gathering a lot of information that might be against the accused person, and really might create a bias in you against that party.

  In every witness interview, you do want to start by building rapport. So, we have a lot of information about all the stuff that you want to ask them. And obviously, I want you to help your client manage resources, but if you don't spend a little bit of time building rapport with a witness, you're not going to get great information. Rapport helps build trust, it makes people more comfortable to discuss things. So, it really is critical that you start out with a more casual exchange. Make sure you let the witness know that they can pause throughout the process, they can can ask questions throughout the process. Witnesses oftentimes before the investigation interview starts, ask if they can provide written statements, which the witnesses can provide written statements, but all witnesses should still participate in the interview process. Do not let a written statement be in lieu of the interview.

  During the interview, all questions asked to be open ended, which I mentioned earlier, but it is a critical point. So, make sure all questions are open ended. Use plain language, do not use legalese or complex language in any investigation, no matter who you're interviewing. It does not advance, it usually does not advance an investigation. And it's hard to really build rapport when you're using complex language. And again, I know I've said this repeatedly, but be very careful that your language does not create any implication of guilt or innocence.

  The goal for each interview should be to get a complete understanding of the facts. You do want to try and get an interview done within a single period. Of course, though, you should always tell witnesses, you might need them to come back for additional questioning later in the investigation process. Certainly for a complaining witness, you will need to repeat throughout that making the report was the right thing to do, that your client is grateful that, that employee has taken a stand and brought the matter to the employer's attention. Say it's always the right thing to do to report something that you think is wrong, regardless of what the outcome is in the investigation.

  Every witness needs to be reminded that the client has an anti-retaliation policy. And if your clients, if any of your clients don't have an anti-retaliation policy, make sure that's put in place immediately because the EEOC really does look at that. And also it will help reinforce the integrity of the investigation if they have that policy and you can tell each participant that they will be protected from retaliation. As is true in any investigation, you need to listen carefully. You can follow the outline that you prepared, but also be ready to go off course as follow up questions and really dig in if unexpected information is disclosed. Since this really is an investigation process, there's no bad information. You want to get all information that you can and that means confirm specifics of each interaction. For example, who was present, what was the date, what were the times, at what locations, what was said by each party and how was it interpreted by the witness?

  Keep in mind, people are not going to remember typically every detail, especially if something occurred over a longer period of time. But the more specifics you can get throughout the investigation process, the better prepared you will be to make a determination at the end. Excuse me. Even if startling information is disclosed and I could tell you for sure, if you do a lot of investigations at some point or another, some startling information will be disclosed, you as the investigator need to maintain composure at all times. And then approach critical topics from multiple questioning perspectives. Much like in a deposition where you're really trying to dig in, you could ask a line of questioning, and then if you're concerned at all about credibility, come back to that line of questioning later and maybe attack it in a new, different perspective, from a new, different perspective.

  However, unlike a deposition where there's an adversarial relationship and you might really want to be trying to get somebody to say something, as an investigator, you are a neutral, never, ever use trickery. And really, even as an attorney in deposition, you should never use trickery or entrapment to get an admission from any witness. That sort of behavior will definitely damage the integrity of the investigation process. This is not a race, you can go slowly, you could take your time. Definitely use follow up questions. If any information that you got or any answers are vague or ambiguous, follow up, dig in and get as much information as possible. Don't be afraid to take breaks and review the responses.

  Now, if a witness becomes hostile or can't continue for some reason, pause the interview. You can come back at it the next day. And this has happened, if you learn of any ongoing illegal activity that needs immediate attention, or if you hear anything that implies an immediate risk of harm to any party, pause the interview and contact an appropriate representative of your client. And if there truly is an imminent risk of physical harm to any party, call 911 and it should be reported immediately and let the authorities take over. Hopefully that never happens. That's a pretty rare situation, but it can happen.

  So, when you're going through the interview, make sure you're reviewing documents and showing the witnesses documents, and having them answer questions about that and find out at the end of investigation, are there other documents that you need to look at? Are there other witnesses you should be talking with? Meeting face to face again is the ideal standard, especially for determining credibility, but Zoom can be fine as well, not my favorite, but it certainly, and sometimes you have interviews across the country because people are located in different places. So, telephone can work well as well. Although I would much prefer Zoom because you do want to at least see the person, what are they doing while they're answering questions? Are they giving you their full attention? And are they reading anything? You want to get as close to that in person experience as possible.

  After you've done with the interviews, you're going to have to assess credibility. You're going to look through all the information that you gathered. So, the documents, your notes on the investigation interviews and take a real thorough look. Now it's normal to have some degree of skepticism in any investigation, but you have to understand that in this day and age, the impact of someone's behavior is even more important than their intention. A lot of times, somebody who is a reported party did not intend to harass or did not intend to discriminate, but you, as the investigator need to look, what was the impact of this party's behavior? Was there discrimination? Was there harassment?

  Keep in mind too, that a complaining party's behavior might not always match expectations of credibility, especially in situations like sexual harassment. If there's any trauma or stress in this situation that can impact recollection. Sometimes people have that fight or flight or freeze response, even during recall. So, keep in mind, especially there's been evidence that this is true when women have reported sexual harassment, they can oftentimes appear scatter-brain, they might not remember every detail. Traumatic events do impact memory and so be careful that you're not really just brushing aside true problematic behaviors just because somebody seems a little bit scatter-brain.

  At the end of the investigation, you're going to have to memorialize and communicate your findings. Most often we recommend the results of an investigation should be reported in writing. There are some very sensitive situations though, where it might be determined results should be shared orally instead. And you, as legal counsel, are going to have to determine on a case by case basis. Regardless of whether it's orally shared or in writing, you want to provide a summary of the complaint or complaints received, a statement that describes the scope of the investigation you conducted. You want to identify the witnesses interviewed, the documentary and other evidence reviewed. When you identify the witnesses, you should give a summary of each witness's testimony and a summary of the relevant evidence. So, what did you find that supported or that contradicted the reported complaint. And then give a summary of your impressions, findings and conclusions. You should say, if somebody was less credible or more credible, you really are going to have to make that determination and explain why, and that will help your client in the future, and also really support why your client made the determination.

  Once you are reporting the information, you should also be making a determination, whether any disciplinary action is required of any of the employees, whether your client should consider an overhaul of internal policies or just a revising of some internal policies or whether further investigation needs to be conducted. When you're advising your client on these issues, make sure to reinforce and repeat as often as possible that those witnesses, the complaining party, anybody who is involved in the investigation, should be protected from retaliation.

  And be cognizant that sometimes actions taken to address complaint, can be perceived as retaliation. For example, I have seen a situation where an employee felt that they were being retaliated against because the investigator said, "Do you want us to fire the person that you complained about?" And that put the employee in a very difficult position because the employee was a newer employee and the supervisor was a long term supervisor, the supervisor about who the employee complained. So, be very careful, make sure that clients understand that they need to be cautious in communicating information to a complaining party. Regardless of the investigation's outcome, it's really important and we always say it's very important to communicate the results of the investigation to the complaining party.

  This is an opportunity to thank that complaining party for bringing the matter to the company's attention. It also is an opportunity to really express that employee concerns are valued by the organization, that your client wants employees to raise issues where they see problems, so that they can be addressed, so that they can be investigated. I think it's also important to notify other witnesses that the investigation is closed.

  Now, when I say, speak to the complaining party and let them know the results, you do not need to give specifics, especially where there was discipline of the party about who the complaint was made. You certainly would do not want to be giving specifics about any discipline of another employee. Instead, you do want to say, we found there were some policy violations here, and I want to assure you that the company is taking appropriate steps to address the behaviors that you reported. Ensure that these things do not happen again in the future and the parties who are implicated have been disciplined and the matter has been handled appropriately. But you do not want to get into specific discipline. Now, obviously, if the employee about who was complained has left the organization, people will know that, but if the person remains within the organization, there might be some question of, "Well, was anything done really to address the matter?"

  So, you do want to be a little bit mindful and maybe sometimes more information will be given to the complaining party. And most times, less information will be given, but just letting people know that a determination was made, an appropriate action was taken. And then notifying every witness who was involved, usually via a phone call is best, that the investigation has been closed. The matter has been handled, and you are thanking that person for their participation in the process. It really does help with report if you thank people for being involved and remind every witness that it is important to report incidences of any sort of company violation.

  Now, in terms of determining with your client, what disciplinary action should be taken, obviously that depends on the specifics of the situation and what policies were violated, but I will tell you that it often ranges from something like coaching, where you require an outside coach come in, maybe some mediation to help communications between the person who complained and the person about whom was complained. And of course, there are suspensions, there's loss of bonuses and oftentimes in egregious cases, there's going to be termination. And I will say, we're seeing more and more of our management side clients have no tolerance, zero tolerance policies. I'm always cautious about zero tolerance because we're dealing with humans and different circumstances arise, and we should be mindful that some circumstances do require absolute termination, but many situations can require something like coaching or mediation or some sort of communications training to help employees be better employees and do you better at their job.

  Regardless of the outcome though, you do want to advise your clients that from an initial complaint, through a careful and meticulous investigation with the results interpreted, with swift action, can help them, can help your clients avoid liability. Basically, an internal investigation that's well done, can be a very valuable tool in ensuring that your client has a positive, productive environment for all employees. And the more accustomed your clients get to conducting these investigations, the more trust and faith employees will have that they're going to be done professionally and handled appropriately, and that will only better serve your clients.

  So, I just want to say thank you all for participating in the CLE today. If you have any questions regarding internal investigations or regarding any matter raised in this presentation, please reach out to me. I'm always happy to connect with people and learn more about what you are doing, and what you're advising your clients. And if you have better ideas for investigations, please share them with me. Thank you so much and have a great day.

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1h 03s

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