Conducting an Internal Investigation: What Every Supervisor Needs to Know

Transcription

1 Conducting an Internal Investigation: What Every Supervisor Needs to Know Presented by: Mariah L. Passarelli, Esq

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3 Common Causes for Investigations Suspected use of controlled substances Allegations of discrimination and/or harassment Harm to property/theft Misconduct Safety concerns

4 Goals of Investigations Did the behavior occur? What is the appropriate discipline, if any? How can we reduce damages? How can we limit the risk of liability in the future? Can we prevent a repeat occurrence?

5 The Need for Objectivity The investigation should be conducted from an objective, third-party approach Unproven suspicions and assumptions should be discarded All relevant material facts should be investigated Follow-up on conflicting information

6 Be thorough, but not crazy

7 Legal Pitfalls Associated with Investigations Violation of Labor Agreement Discrimination/Harassment Claims Retaliation Claims Negligent Hiring/Retention False Imprisonment Employee Privacy Concerns Defamation/Libel

8 Conducting The Investigation What skills and abilities are important? Ability to understand business purpose of investigation and potential issues it may raise Knowledge of company policies, procedures, and practices Knowledge of applicable legal issues Interviewing skills Credibility/impartiality Effectiveness as potential witness Ability to take thorough, accurate notes Ability to maintain confidentiality Status as attorney or independent third party

9 Step 1: Strategery Prepare Investigation Strategy Order of interviews (Complainant-first, alleged wrongdoer-next or last?) Determine what will be said to employees and outsiders Avoid group interviews Document

10 Who should you interview? Identify Potential Witnesses Accuser (or alleged victim, if other than accuser) Accused Coworkers who work in area where alleged misconduct occurred Past and present supervisors of the accuser and accused Witnesses Authors of relevant documents Others, as identified

11 What Documents should you review? Identify Documents Rules, policies, procedures Memoranda or notes about incident Time cards Expense reports and receipts Communications to employees Prior complaints Employees personnel files Managers notes and files Sample work of employees and others for comparison Security videos/searches/ s

12 Action Items Prepare Outline of Topics and Questions Be a good listener Goal is to get to the Who, What, Where, When, Why and How of the situation or event Are there other people who should be interviewed? Should you circle back and re-interview someone you have already spoken with in light of new information?

13 Keep Your Goal in Mind Goal of investigation should be for each act and each statement determine: Did this occur? When did this occur? Where did this occur? Who was present when this occurred? Exactly what happened or exactly what was said? Was anyone else present during those incidents or conversations? If so, who was present for each of them?

14 How to Effectively Interview Witnesses (Cont.) Purpose of Investigative Interview Obtain the truth and preserve dignity and respect of interviewee Understand the interviewee Develop working hypothesis Determine credibility of the interviewee Document factual information

15 Other Interview Considerations Consider Weingarten Rights Use a non-restrictive environment Have 2 people present for interviews Ensures accurate notes Witness to corroborate statements made

16 What to do With a Complaint / Complainer Take notes Request that the complaint be in writing If individual refuses to put complaint in writing, draft your understanding of the complaint and have the complainant verify its accuracy and sign Do not promise confidentiality; confirm that information will be shared with those who have a need to know

17 The Interview No-Fly Zone Types of questions that should be avoided: Loaded, e.g. Somebody stole merchandise yesterday and you were the only one here. Accusatory, e.g. Just tell the truth, you stole the merchandise, didn t you? Multiple, e.g. If you didn t steal the merchandise, then who did? Why would you do something like that. (compound)

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19 Get the facts Developing the Facts Start with broad open-ended questions, e.g., What happened on your shift yesterday? or Did anything unusual happen? Then work your way towards narrower, yes/no questions. Ask follow up questions, What did you mean by...? What made you believe...? What did you mean by your use of the word....?

20 Don t abandon your people skills Be Patient Give witness time to respond Don t rush allow time to think and form answers Be respectful of individual styles Use silence

21 Use common sense Try to save unfriendly or embarrassing questions until the end; beginning with hostile questions usually causes the interviewee to be defensive Neither give the impression that you disbelieve any witness nor express an opinion as to whether something inappropriate occurred during the fact-gathering process Confirm witness is giving you first hand information and if not, who does have first hand knowledge.

22 Wrapping up the interview Be a closer : Is there anything that I have overlooked? Is there anything else we ought to know about? Warn against any retaliatory acts What are you doing to document the statement?

23 The inevitable jerk The Hostile Witness (or the one who doesn t want to cooperate) Accept the hostility Document it Make sure company policy includes a provision that requires employees to cooperate in any internal investigation

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25 Investigation Findings Consider factors such as evasiveness, contradictions in statements, blushing, or other facial expressions, potential signs of anxiety such as shaking, perspiration, defensiveness and other demeanor evidence Generally, no tape recording because it frightens witnesses If wish to use a recording device, check local laws and obtain consent on the record Remember that not all complaints require a full-blown investigation; once you start the procedure, do it correctly

26 Outcomes Generally, five possibilities The event happened More likely than not that the event did occur, for the most-part, as described More likely than not that the event did not occur to any reasonable extent as described The event did not happen Non-finding

27 Don t be trigger-happy

28 Does your conclusion have a documented basis? Consider Preparing Interview Summary Essential information Name of attendees and Date, time, location of meeting Write factually detailed chronology as provided by the interviewee (using the same structured interviewing questions)

29 Documentation Good documentation is very important. Are your notes legible? Did document who did the interviewing, who was interviewed, who was present for the interview, date/time that the interview occurred? Did you gather any relevant documents identified during the investigation? Did you document outcome/discipline/resolution? Who were the decision-makers?

30 Useful now; Useful later Create separate file for investigation The following documents should be included in the investigation file: All complaints Documentation on actions taken-interviews, documents obtained, etc. All communications to and from witnesses and complainants Interview notes All draft and final witness statements (with dates, authors, witnesses and subjects clearly indicated)

31 All related documents should be included All documents which establish or refute the allegations Relevant physical evidence - surveillance, s, photos, product samples Investigator s report Documents reflecting notification of investigation results and remedial action

32 Investigate Promptly Summary When observed conduct constitutes actionable event, do not wait for complaint to be lodged Do not allow your internal investigation to undermine reasonable avenue for complaints Follow Through

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34 Know when to jump ship Should a severance package be offered? Avoiding litigation in this area: No difference re: severance package along protected class lines Proper language for waiving ADEA claims What are you doing about UC benefits?

35 Where do we go from here? You can use an attorney to conduct an investigation (good idea if accused is highmanagement or HR) Does a policy or procedure need addressed to prevent a repeat? Does your workforce need training? Do you have the documentation in place to facilitate the investigation?

36 Let us help you fireproof your business. Onsite training on employment law hot spots Webinars for multi-office participation Strategic development and planning Partnership with your onsite HR professionals and supervisors for real-time problem-solving Education programs with real-life examples so your employees are armed with the know-how they need

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