Conduct Fair Workplace Investigations

Conducting a Procedurally Fair
Investigation
Lorene F. Schaefer, Esq.
Win-Win Resolve, WinWinResolve.com
©2014 Win-Win Resolve
All rights reserved

About Lorene Schaefer, Esq.
Lorene Schaefer is the managing partner of Win-Win Resolve
and has over 23-years of legal experience, including 14-years
as in-house counsel at the General Electric Company.
Win-Win Resolve is a boutique law firm focused exclusively on
ADR and the nationwide administration of internal dispute
resolution programs and compliance hotlines that are trusted by
employees. She also conducts workplace investigations and is
a registered mediator.
Her book – Corporate Counsel’s Guide to Internal Investigations
of Harassment, Discrimination & Retaliation – will be published
this year by the ABA.
Lorene is available nationwide to deliver customized on-site
cross training of in-house legal counsel and to enhance the
investigation skills of Risk Management and HR professionals.
Lorene F. Schaefer, Esq.
WinWinResolve.com
All rights reserved

Today: 2nd in 3-Part Webinar Series
Part 1 in 3-Part i-Sight Series -- Free recorded
webinar available at
http://i-sight.com/preparing-to-conduct-an-investigation-thank-
you/
Focus of 3-Part Webinar: Procedural Fairness
Not Traditional Legal Analysis
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Recent Research
 Ethics Resource Center (2013) Encouraging Employee Reporting Through
Procedural Justice. Arlington, VA: Ethics Resource Center.
 Ethics Resource Center (2012) Inside the Mind of a Whistleblower. Arlington,
VA: Ethics Resource Center.
Founded in 1922, the Ethics Resource Center is the
oldest nonprofit organization devoted to
independent research and the advancement of high
ethical standards and practices in public and private
institutions
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Key Takeaways from Research
Employees prefer to resolve their compliance concerns internally and
privately with their employer.
Employees will report their compliance concerns first internally to their
employer if they perceive their employer’s investigation and resolution
process as procedurally fair.
Employees will accept the outcome of an employer’s internal
investigation – even when the outcome is disappointing or legal
constraints limit what the company can tell the employee about the
outcome --- IF the employee perceives their employer’s investigation
and resolution process as procedurally fair
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The Challenge
Developing Protocols and Training Curriculums that
Demonstrate Procedural Fairness
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What is a Procedurally Fair Investigation?
 The company has established procedures for investigation and resolution
of reports. Those established procedures are clearly explained.
 The company consistently follows its established procedures.
 The investigator is perceived as neutral and conducts the investigation in a
neutral and unbiased manner.
 The reporting and accused employee(s) are given ample opportunity to tell
their side of what happened and in their own words to the investigator.
 The investigator treats all investigation participants with dignity, respect,
and concern for their well-being.
 The investigator takes into account the issues raised by all parties in
analyzing the information gathered.
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Source: Schaefer, Lorene. Corporate Counsel’s Guide to Internal Investigations of Harassment, Discrimination &
Retaliation. ABA Book Publishing (scheduled for publication in 2014).

Lorene’s Practical Tips for Demonstrating
An Internal Investigation is Procedurally Fair
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Tips for Demonstrating Company has
Established Procedures It Follows
Consistently3
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Demonstrating Established Procedures
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1st Tip
Develop written investigation and resolution
procedures that are tailored to the organization’s
specific needs, risks and challenges and provide for an
in-take risk assessment that avoids one-size-fits all
investigations or resolutions.

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Develop a communication plan to ensure you actively
and repeatedly communicate to all constituents the
organization’s investigation and resolution procedures.
2nd Tip

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Ensure compliance through regular training of
investigators and monitoring and auditing of
investigations and resolutions of complaints.
3rd Tip

Tips for Demonstrating Investigator is
Neutral3
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Demonstrating Investigator is Neutral
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At minimum, neither the complaining or accused
employee(s) should have supervisory authority over the
individual who conducts the investigation. Similarly,
avoid selecting an investigator where a key fact witness
has supervisory authority over the investigator.
1st Tip

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Consider separating out the fact-finding from any
recommendations regarding corrective actions or
resolution.
2nd Tip

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Compensation of investigator should in no way be
impacted by investigator’s factual findings.
3rd Tip

Tips for Demonstrating Investigation
Process is Neutral4
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Demonstrating Process is Neutral
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Investigator should share with reporting and accused
employees and all witnesses interviewed an overview
of investigator’s education and investigation training.
1st Tip

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Investigator should share with reporting and accused
employees an overview of the investigation process,
including an explanation of how credibility
assessments will be made if necessary.
2nd Tip

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Consider developing a template to help ensure
consistent framework used when credibility assessments
are needed.
3rd Tip

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If possible, consider limiting the investigator’s role to
investigation and fact-finding with recommendations and
decisions on any corrective action and resolution made by
separate individual(s).
4th Tip

Tips for the Investigator to Demonstrate
Dignity, Respect, and Concern for
the Well-Being of Reporting and
Accused Employees
4
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Demonstrating Dignity, Respect & Concern
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Begin every meeting with a professional greeting and
explain your “agenda” for the meeting. Thank them for
taking the time to meet with you.
1st Tip

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End every interview by asking if there is anything else
the person thinks it would be helpful for you to know
that you haven’t discussed. Thank them for their time
and explain what will happen next.
4th Tip

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Consider developing a template to be used by investigators
documenting the
2nd Tip
 relevant facts to be determined;
 sources of information gathered related to those
relevant facts;
 consistent information gathered; and
 conflicting information gathered.

Upcoming Investigation Training by Lorene
All rights reserved
Third in 3-Part Webinar Series, June 5, 2014 at 2 p.m. EST. http://i-
sight.com/webinar-series-conducting-workplace-investigations-before-during-and-
after
Intermediate Workplace Investigation Training, Sept. 22 -23, 2014. Atlanta, GA
http://www.workplace-investigations-group.com/training/
Workplace Investigation Training, Oct. 22 -24, 2014. Atlanta, GA
http://www.workplace-investigations-group.com/training/
Lorene is also available to consult with organizations about their investigation
policies and procedures and to deliver customized on-site cross training of in-house
legal counsel and to enhance the investigation skills of Risk Management and HR
professionals. Call 800-830-1561

Thank-you for Participating
If you have any questions, please feel free
to email them to:
Lorene F. Schaefer, Esq., Employment Attorney,
Mediator & Workplace Investigator
Lorene@WinWinResolve.com
Joe Gerard, Vice President Marketing and Sales
j.gerard@i-sight.com
All rights reserved

Conduct Fair Workplace Investigations

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