"It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.”
~ Sherlock Holmes in A Scandal in Bohemia
While we do not recommend dressing like him, there is much to be learned from Sherlock Holmes and his detective skills. There are many instances that require human resource professionals to conduct internal investigations (i.e., employee complaints, harassment investigations, employee discipline, workers’ compensation fraud). A case can be made or lost depending on how the investigation was handled. We investigate to: avoid improper discipline; provide a defense if the company is sued for discrimination or harassment; and/or ascertain if employees are following company policies as well as federal, state and local laws.
Here are some steps you may want to follow the next time the need to investigate in the workplace arises. First, you want to always investigate promptly. This shows the company takes the situation seriously and assists with employee morale. Second, choose an investigator who is best suited for the situation (e.g., HR personnel, management). This is going to be the person who:
- Is seen as objective and impartial;
- Has good people skills;
- Listens well;
- Has experience with investigations;
- Possesses knowledge of company policies and practices;
- Is organized and detail-oriented;
- Will be a believable witness;
- Will maintain confidentiality;
- Has knowledge of discrimination and other employment laws; and
- Is likely to remain employed with the company (if an internal employee).
Investigation plan
Next, you need to plan for the investigation. Create a list of potential interviewees and possible witnesses. This list may need to be modified based on what is discovered during the interviews. For example, if you interview the accused and he/she admits the wrongdoing, you may not need to interview any further witnesses. You want to limit interviews to witnesses of events, members of the same department or subgroup, supervisors or subordinates, and authors of key documents. Less is more in these instances – the less people we need to involve, the less disruption to the workforce and better maintenance of confidentiality. The investigator will want to review any documentary or physical evidence, such as personnel policies, personnel files, relevant correspondence, offending email, write-ups, etc. Lastly, it is best to create interview questions in advance mostly opened ended questions so you do not appear biased. The investigator will want to explore the facts of what occurred, the who, the what, the where, and the why. The investigator should dig into any discrepancies to determine if any interviewees may be lying or are misstating the facts.
Interviewing tips
Once interviewing, the investigator should do the following:
- Keep detailed notes of the interviews;
- Weigh the facts and impressions;
- Assess credibility of witnesses; and
- Evaluate witness testimony & employee histories.
- (Now is not the time to star in your own movie or a nighttime cop drama with aggressive interview tactics!)
Once the interviews are complete, the investigator should prepare a report of the investigation. The investigator should set forth what the investigation is about (is this an employee complaint situation or a discipline issue). The report should include the names of all of those individuals involved, dates of the interviews, who was present and a summary of the statements and interviews. It is important to note non-verbals from the witnesses that may go for or against their creditability. Lastly, the investigator should explain any factual inconsistencies that could not or were resolved. In certain situations, the mental impressions of the investigator may be given (however, many times this is best left to be told orally to the decision-makers) and an investigator recommendation may be warranted.
Finally, the investigation should be closed and the decision-makers should take action. If discipline is appropriate, it should be made. The appropriate parties should be informed of the findings – sometimes it is just about being heard by their employer. The company should remind all parties involved about the confidentiality of the matter and that no retaliation to any other employee will be tolerated. The parties should then be given a chance to ask any follow up questions.
As a housekeeping measure, all investigation notes, statements, documents, etc. should be kept in a separate, confidential folder in a private area. One size does not fit all here. However, with a prompt, thorough and objective investigation, many potential risks and fallout from the original problem are diminished. Being able to back up an employment decision can be done only when a proper investigation was conducted. Remember, we cannot stop employees from suing, we just need to make sure we have the best defense when they do.
