Common Investigation Pitfalls and How to Avoid Them, Part 2: Doing It Right
In an increasing trend, parties to employment lawsuits find themselves litigating not only the plaintiff’s underlying employment claims but also the company’s investigation – or lack thereof – into the plaintiff’s complaints.
A variety of potential pitfalls can compromise the actual and perceived quality of an investigation. That, in turn, can cast a shadow on the company and its motives, either to the jury in a future lawsuit or in general to other employees. This second installment of the three-part series will identify common investigation mistakes and how to avoid them.
PITFALL #4: Not Being Thorough (“I talked to the accuser and got the whole story.”)
All of these are essential components of a thorough investigation:
- Interviewing the respondent and providing an opportunity to be heard. However compelling the accusations may sound, the respondent’s interview may yield surprising information. It’s crucial to get both sides of the story before drawing conclusions or imposing discipline.
- Interviewing all relevant witnesses. For example, the complaint’s coworkers may have evidence that supports or undermines the allegations or that may impact credibility assessments.
- Asking witnesses for all relevant information. Any given witness may have evidence that sheds light on the case, or may know of someone else who does, but also may not volunteer that information until the right question is asked. Closeout requests for “anything else that might be relevant” or “anyone else I should talk to” may elicit responses that other questions did not.
- Asking follow-up questions. The investigator should follow through on potentially relevant new lines of inquiry that unexpectedly arise during an interview and also should not hesitate to follow up with witnesses after their interviews, if needed.
- Obtaining relevant documents and electronic evidence. In addition to requesting this from witnesses, the investigator should think creatively about where to look for relevant evidence in each investigation – for example, by examining badge access records, reviewing surveillance videos, or conducting a forensic search of computers for particular emails or files.
- Doing a follow-up interview with the complainant if necessary. The complainant is often the first person interviewed, so he or she may need the opportunity to respond to evidence gathered thereafter.
A cursory investigation may give the appearance that the company did not take the investigation seriously or did not conduct it in good faith.
PITFALL #5: Taking Sides (“I’m so sorry this happened to you.”)
To remain neutral and conduct an unbiased, objective investigation, investigators should avoid:
- Openly empathizing with the complainant
- Defending the conduct of the respondent
- Reaching conclusions before all the evidence is in
- Forming an early theory and seeking evidence that reinforces it without equally seeking evidence that may undermine it
- Treating a witness interview like a cross-examination
- Playing “gotcha” and trying to get admissions
Investigator selection can play a big role here, too. A friend (or enemy) of the complainant or respondent may take sides without realizing it. The less the investigator knows the parties, the lower the risk of bias (or the perception of bias).
PITFALL #6: Promising Confidentiality (“What you tell me won’t leave this room.”)
The investigator should always explain to witnesses up front that confidentiality is limited. That’s because the investigator or the company may need to:
- Disclose pieces of information to other witnesses in order to get other relevant information
- Ask a witness some questions that allow for an inference that another witness shared something (for example, if there were only two parties to a relevant conversation)
- Reveal certain information in order to take appropriate disciplinary or remedial action
- Report the investigation findings to various individuals within the company
While the investigator can promise to disclose information only on a “need to know” basis, the nature of investigations precludes complete confidentiality. Thus, an unqualified promise of confidentiality is misleading and will likely cause witness complaints, mistrust, and other problems down the line.
PITFALL #7: Using Bad Interview Tactics (“That’s not what Jane told me, and her story sounds more believable to me than yours.”)
Investigators should not:
- Argue with the witness
- Express an opinion
- Suggest a foregone conclusion
- Share information, evidence, or names of witnesses unless truly necessary
But they should:
- Inquire further where facts do not “gel” or are inconsistent with prior statements or documents, to allow the witness the opportunity to explain
- Ask tough questions, such as about prior inconsistencies, even if it seems impolite
- Ask open-ended questions rather than leading ones – broader questions may elicit surprising and useful information
- Ask for supporting evidence (photos, emails, notes, calendar entries, etc.) and witnesses
- Ask “catchall” questions like, “Do you have any other information/documents relevant to this issue?”
Part 2 in a nutshell: Investigators should be thorough, open-minded, honest about the limits on confidentiality, and mindful of using good interview tactics.