When performing workplace investigations, I religiously adhere to “15 Commandments:”
Commandment #1: Thou Shalt Be Fair. “Due process” is just legalese for being fair. In law, due process involves two broad concepts: (a) notice of the issue; and (b) a reasonable opportunity to be heard on the issue. Fairness entails affording the accused party of reasonable notice of the allegations. This can be done when the interview is scheduled, at the commencement of the interview, or piecemeal during the interview—it just depends on the circumstances. Respondents and complainants should also be reasonably informed of the findings of the investigation. An in-depth explanation/justification for the findings is not required.
Commandment #2: Thou Shalt Be Prompt. The appropriate speed of an investigation depends upon the circumstances. Investigations involving multiple incidents, complainants, respondents, or other witnesses will necessarily take more time to complete. I usually perform simple investigations from initial consultation to delivery of my investigation report within 10 days.
Commandment #3: Thou Shalt Be Thorough. As with promptness, the necessary degree of thoroughness depends on the circumstances. An investigator is not required to “leave no stone unturned,” but merely to be reasonably thorough. It may not be necessary to follow every single lead. Credibility assessments can be made on the fly, and non-credible evidence need not be pursued to the ground. Evidence that is merely cumulative does not need to be explored to the nth degree.
Commandment #4: Thou Shalt Be Appropriately Confidential. No witness should be promised absolute confidentiality or anonymity. Information should be given out on a need-to-know basis. Under current law from the National Labor Relations Board, employers may generally request witnesses not to discuss anything pertaining to the investigation with anyone, including other employees— but only pending the conclusion of the investigation.
Commandment #5: Thou Shalt Place a Litigation-Hold on Documents and Electronic Data. Working with the IT Department, I make sure all documents and electronic information, including metadata, are preserved indefinitely. Consider hiring a forensic IT expert. You would be amazed what they can find.
Commandment #4: Thou Shalt Hire an Outside Investigator. Hiring an outside investigator—especially an attorney who is an Association of Workplace Investigators Certificate Holder (AWI-CH)—is wiser than attempting to save money by using your regular HR manager. First, your outside investigator is likely to have much more: training and experience conducting investigations, familiarity with applicable employment laws, greater gravitas with your employees, appearance of impartiality. If litigation ensues, an outside investigator will probably hold up better under cross-examination, and you may choose to shield the investigation by means of the attorney-client privilege or work product doctrine if you use an attorney-investigator. Additionally, HR managers are put in a compromising position when ferreting out details that may be unwelcome news to upper management. The “kill the messenger” syndrome is very real and can be career-ending. Finally, doesn’t your HR manager already have enough to do without taking out a solid week to do an investigation and write up an adequate report?
Commandment #7: Thou Shalt Create a Plan and Adapt as Necessary. Investigations should be well designed in terms of the scope of the investigation, the identity of witnesses, and order for interviewing them, the questions to ask, and the disclosure of information to witnesses.
Commandment #8: Thou Shalt Apply the “Preponderance of the Evidence” Standard of Proof. Generally, the goal is to determine as best as possible what more likely than not occurred. This is known as the “preponderance of the evidence” standard. The preponderance of the evidence standard is satisfied by 50% weight of the evidence, “plus a feather,” on one side of the proverbial scales of justice.
Commandment #9: Thou Shalt Know Applicable Policies and Law. Policy and procedure manuals and collective bargaining agreements often contain statements about how any workplace investigation will be conducted. Investigation involving public sector employees can require additional due process as compared to private sector investigations, and even a different standard of proof.
Commandment #10: Thou Shalt Be Aware of Investigator Bias and Witness Bias. Implicit bias affects everyone, and some people are flat-out bigots. Investigators who are aware of their implicit biases are less likely to act upon them. Conflicts of interest can also taint a witness’s statements.
Commandment #11: Thou Shalt Give Standard Advisements to Witnesses. I begin every interview with a set of standard advisements to the witness: (a) retaliation for participating in the investigation will not be tolerated by the employer and should be immediately reported if it is suspected; (b) information will be disclosed on an as-needed basis; (c) no evidence should be concealed, destroyed, or altered; and (d) although I am an attorney, I am not your attorney and I am not here to provide legal advice or advocate a cause, but rather to conduct an independent and impartial investigation. Additionally, I always ask witnesses whether they understand what I’ve told them or if they have any questions.
Commandment #12: Thou Shalt Use the Funnel Approach to Questioning. I begin with general questions and move toward more specific questions.
Commandment #13: Thou Shalt Use Open-Ended Questions. As a trial lawyer, I know how to use open-ended questions designed to elicit more information and be non-leading. Open-ended questions begin with Who, What, When, Where, Why, and How. Closed-ended and leading questions typically begin with Did.
Commandment #14: Thou Shalt Make Determinative Credibility Assessments. In my opinion, it is irresponsible for a workplace investigator to come to the end of the interviews and conclude that it is “just he said / she said,” and therefore “inconclusive.” Under the preponderance of the evidence standard where “only a feather” is required to tip the balance one way or the other, it is virtually impossible for a situation to be a dead tie. I take into account: (a) motive of witnesses to lie; (b) the degree of corroboration; (c) witness bias; (d) opportunity of witnesses to observe events; (e) ability of witnesses to remember; (f) possible corruption of memory due to scientifically-established psychological phenomena; (g) reputation for truthfulness; (h) plausibility and; (i) demeanor when answering questions. If, after applying all these factors, it is still a close call, the investigator should make the call, but simultaneously indicate that it was a close call.
Commandment #15: Thou Shalt Document Interviews, Findings, and Reasons for Findings. I document the date, time, location, and length of interviews—all of which can be important if litigation ensues. I document the questions I asked, and the answers given. I make my findings based upon the applicable standard of proof, and then explain why I came to the conclusions I reached, applying the various credibility factors.