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Planning For Internal Investigations
By Amy R. Guerin on October 14, 2016

It will happen to you. If you manage people, you know that everyone makes mistakes and, sometimes, some people intentionally do the wrong thing. It is inevitable that all organizations – big and small – will eventually have to investigate employee misconduct. It is simply a part of doing business. 

How you conduct an investigation can have big implications for your company’s potential liability in the future.  Investigating alleged sexual harassment, for example, if done properly, can help minimize potential liability in a sexual harassment lawsuit.  As another example, properly investigating allegations of fraud or theft can minimize your liability in a wrongful termination lawsuit.  A well done investigation is an invaluable defense.

While it is not possible to summarize the entire investigative process in this one article, here are a few tips for making sure that your investigations get off to a good start. 

First, it is important to set the right “tone” when allegations come in and when the investigation starts.  Investigations have to be neutral, fair and objective from start to finish, and both the complainant and the accused need to believe that.  Investigators need to keep an open mind and be ready to hear both sides of the issue.  Making statements or expressing opinions that suggest you have already made up your mind before the investigation is over will only undermine the usefulness of the investigation.  For example, DON’T say:

  • I knew that we would catch him/her eventually.
  • I can’t believe that he/she would do something like this.
  • That just doesn’t seem right; are you sure about that?
  • That’s so horrible; I’m sorry you had to experience that.
  • I’m only investigating because policy says I have to.

Rather, DO SAY things that discuss the process and indicate that you will promptly act:

  • We take all allegations like this seriously and will be conducting an investigation.
  • Company policy is to conduct a prompt and thorough investigation into all allegations.
  • I will be in touch to schedule a more thorough interview with you.

Importantly, do not guarantee confidentiality.  A basic notion of due process is that accused employees be given the opportunity to hear and respond to the evidence against them before any decisions are made.  While you can take steps to keep the information as confidential as possible, absolute confidentiality is not realistic.

At some point during the process, employees will often try to withdraw or rescind allegations.  Unfortunately, that is not possible.  Once an allegation is made you have a responsibility to follow through with an investigation.

Next, after allegations are received, you should notify the accused employee that they are being investigated and why.  You should do this both in person and in writing.  If the employee is represented by a union, you might consider having a union representative be present as well.  The employee will undoubtedly become defensive, which can create an uncomfortable situation.  The proper way to address the employee is with respect and by explaining the process.  Emphasize that no decisions have been made, and none will be made until the investigation is complete.  Let the employee know that he/she may identify evidence in their own defense and let them provide the names of potential witnesses.  Convey, with both words and actions, that the investigation will be objective.

At this juncture, you MUST address the issue of retaliation.  Let the accused employee know, orally and in writing, that they cannot take any action or cause any other person to take action that may be construed as retaliation against their accuser.  As the employer, you must not tolerate retaliation in any form.  If you receive allegations of retaliation, you should separately investigate those allegations.  If true, the retaliatory actions themselves can subject a person to discipline – regardless of whether the original allegations are true or not.

Additionally, make sure it is clear to both the complainant and the accused employee that it is your job to investigate – not theirs.  They should not be contacting witnesses or discussing the investigation with anyone else unless they have a legal right to do so.  (Talking with a lawyer or a union representative are examples of a legal right to do so.)  They should be pointing you in the direction of the evidence they want to present, not collecting the evidence themselves.  It is important that you control and direct the investigation, and it is your job to make sure that it is done fairly and properly.

Next, it is time to develop your investigative plan.  Identify potential witnesses with firsthand information, or at least identify those individuals who can lead you to firsthand witnesses.  Think about whether there are any documents – logs, reports, purchase orders, emails, etc. – that would be helpful.  If the allegations are complicated, you may need to consider hiring a forensic expert – such as a forensically trained accountant or a computer technician.  Is there video surveillance, electronic entry/exit logs, or other electronic evidence to gather?  How about property to search?

Taking these initial steps will help ensure that your investigation is off to a good start.  

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