Pdf.one hour pp. the dos and don'ts of investigations
1. The Do’s and Don’ts
of Conducting an
Internal
Investigation
Hilton Waikoloa Village Resort Big
Island, Hawaii.
Teri Morning, MS, MBA, SPHR/SPHR-CA
Teri Morning Enterprises
www.terimorning.com
3. 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.
4. 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.
5. In Regards to
Common Law Do
Understand:
• Negligence;
– Hiring,
– Supervision,
– Retention,
– Investigation.
6. In Regards to
Common Law Do
Understand:
•
•
•
•
•
•
•
Assault,
Battery,
False imprisonment,
Invasion of privacy,
Defamation,
Malicious prosecution,
Abuse of process.
7. 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.
8. 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!
9. 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.
10. In General Don’t:
• 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.
11. 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.
12. 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.
13. 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.
14. 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”.
15. An Initial Complaint Do:
• Strongly consider consulting with
legal counsel for sound investigative
advice and to establish attorneyclient 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.
16. 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.
17. 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 coinvestigator.
– Always have a witness when
interviewing an accused.
• Determine the potential scope and
direction of the investigation.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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?
23. 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.
24. 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!
25. 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.
26. 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.
27. Witness Interviews Don’t:
• 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. Mahalo!
Hilton Waikoloa Village Resort
Big Island, Hawaii.
Teri Morning, MS, MBA, SPHR
Teri Morning Enterprises
www.terimorning.com
teri@terimorning.com