Post on 11-Aug-2020
Conducting an Internal Investigation:
What Every Supervisor Needs to Know
Presented by: Mariah L. Passarelli, Esq.
mariah.passarelli@bipc.com
412.562.8872
Common Causes for Investigations
Suspected use of controlled substances
Allegations of discrimination and/or harassment
Harm to property/theft
Misconduct
Safety concerns
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?
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
Be thorough, but not crazy…
Legal Pitfalls Associated with Investigations
Violation of Labor Agreement
Discrimination/Harassment Claims
Retaliation Claims
Negligent Hiring/Retention
False Imprisonment
Employee Privacy Concerns
Defamation/Libel
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
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
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
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/e-mails
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?
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?
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
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
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
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)
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 . . . .?”
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
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.
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?
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
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
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
Don’t be trigger-happy…
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)
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?
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)
All related documents should be included
▫ All documents which establish or refute the
allegations
▫ Relevant physical evidence - surveillance,
emails, photos, product samples
▫ Investigator’s report
▫ Documents reflecting notification of
investigation results and remedial action
Summary
Investigate Promptly
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
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?
Where do we go from here?
You can use an attorney to conduct an
investigation (good idea if accused is high-
management 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?
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