There will become times when a Human Resources Professional will need to conduct an investigation for a number of reasons. Some of these are an employee grievance, an employee complaint of sexual harassment or other protected activity, breach of a company policy or procedure or a safety breach. When these times come it is very important that the person conducting the investigation be professional about the way the investigation is done.
When conducting investigations into employment law types of situations these should be conducted by a Human Resources Professional. These are the employees that should be familiar with federal, state and local employment laws and will be able to ensure a proper and legal investigation will be conducted.
If the investigation is being done because of a company policy or procedure breach either the Human Resources Professional or another Supervisor/Manager should conduct the investigation.
Entrusting the investigation to a higher-level employee demonstrates to the employees involved the importance and priority the company is giving the investigation. Second, it helps show that the investigator has, and must appear to have, the authority to conduct a thorough investigation and to act upon what is discovered.
If you designate a lower-level employee to conduct the investigation your employees will not feel compelled to cooperate with the investigation as much as they would with a member of management and if the issue goes to trial a jury will not be convinced of the companies commitment to determine the truth because they didn’t not show they felt the incident/issue merited investigation by management.
Also, if employees are not convinced of the investigators clout within the company the investigation may not be taken seriously and the critical facts needed to make a good decision may not be uncovered.
Something that the person conducting an investigation must always keep in mind is that they must always remain unbiased. An employee who has a personal interest in the outcome of the investigation should never be the one chosen to conduct the investigation (Ex. The investigator and accused are friends, married, dating, etc…)
Another very important thing that must be kept in mind is the protection of the claimant. Depending on the type of allegations and the severity of the allegation the accused may need to be suspended pending the outcome of the investigation. As soon as any allegations have been made by a claimant; the person receiving the allegations should contact either management or the HR department or both so that a determination can be made as to whether or not the accused needs to be suspended pending the outcome of the investigation. If a member of management is the one contacted it is in the company’s best interest to immediately get the HR department involved so that they can ensure no laws are being broken and that there is minimal to no chance of a lawsuit being filed against the company because of managements decisions and/or actions during the start of the investigation.
The next step that the investigator must take is to ensure the confidentiality of the investigation. The investigator must instruct the claimant, all witnesses and the accused that the issue is confidential and nobody is allowed to discuss the issue with any other employee and if they do they will be subject to discipline up to and including termination. It is important that the investigator convey to the staff members being questioned the importance of not discussing any part of the investigation.
To begin your investigation you need to first get a statement from the claimant. Once you have read the statement you need to ask the claimant for all detail facts that are not contained in their statement. The things you need to know are who, what when, where, why and how. Who did what to them, when did it happen (date and time), where did it take place, do they know why this person would have done this, exactly how was it done (hit forcibly, pushed in play, cussed at in anger, etc…) and last but not least were there any witnesses and who are they.
To get this information from the claimant you must create a list of questions to ask the claimant about their statement. You can hand write the questions or you can type them. But either way the questions must have a place for the claimant to sign and date certifying that these are their answers and it must have a place for the investigator to sign and date certifying that they took this employees statement. The last thing that you should always tell the claimant is that the company has a policy against retaliation, which they strictly enforce, and if they feel that they are being retaliated against in any way by the accused or any other employee that they should report it to you immediately. If your company doesn’t have a policy about retaliation then it is very important that you implement one. This policy will help protect the company, management and HR against any lawsuits as long as the policy is enforced.
Before you move onto any other interviews you will want to make sure that you have a full understanding of the law, applicable policies and internal guidelines which apply to the incident you will be investigating. You also, at this point, want to ensure that the information you were able to gather from the claimant actually merits an investigation be conducted.
Keep in mind that if any party involved in the investigation refused to cooperate with the investigation you should apprise the party of the consequences of their not cooperating and if it is the complainant or accused you should advise them that their refusal to cooperate forces the company to base their decision on the other information gathered during the investigation and this is their opportunity to provide their side of the story.
After you have gotten all the facts from the claimant the next thing you will do is get the statements of the witnesses for the claimant. However, taking the witness statement does not mean having the witnesses write a statement. It means writing down a set of questions to ask the witness and then writing their answers to those questions. The questions can be written or typed in advance, but the investigator should write the answers to the questions. Then the witness and investigator will sign and date the questions and answers at the bottom on the page(s). While you are asking the prepared questions you may find that the witness has more information than you knew about. So it is usually easier if you write the questions and answers as you ask them so that you can ask follow up questions to information that they give you as you question them. What I find to be the easiest thing to do is to type your questions in advance so that you remember what you wanted to ask the witness but then actually write the questions as you talk to the person so that you will be able to write follow up questions along with the ones you had originally intended to ask. One of the first things that you should notify the witness of is that the company has a policy against retaliation, which is strictly enforced, and if they feel they are being retaliated against by the accused or any other employee that they should report it to you immediately.
When you are questioning witnesses you should always make sure that you are only questioning people who have direct knowledge of the incident. If the claimant or a witness tell you that Jane Doe told him/her that Jack Doe told Jane Doe about what was done you would have no reason to question Jane Doe because she does not have any first hand knowledge. But you would talk to Jack Doe who possibly does have first hand knowledge. You want to always keep your investigation on a need to know basis and you should not involve anyone who does not need to be involved. Always remember to ask the witnesses if they know of any other witnesses who saw or heard the incident so that you can conduct a thorough investigation.
When you start your questioning of the witnesses you should always start off with open-ended questions and then move on to more specific questions to follow up. Never make accusatory statements when questioning a witness and never put conclusory labels on the accused (he harassed her); this will hinder and bias your investigation.
After you have finished questioning the witnesses from the complainant you need to review all the information you have collected to see if the investigation needs to proceed. There will be times that once you have the information from the claimant and the witnesses that you find there is no need to continue with the investigation because none of the witnesses agree with what the claimant has stated was done or said by the accused. However, if they do substantiate the claimants’ accusations then you must continue onto the accused.
You will ask the accused a set of questions that you have prepared in advance, but again you will want to make sure that you have the ability to add new information that you may uncover during the interview. So you should type or write your questions in advance and then write them again while you are questioning the accused so that you have room to add new information if it is uncovered. Always make sure that you get a list of any witnesses that the accused may have so that you can question them in the same manner you questioned the claimants witnesses.
Keep in mind when you are questioning the accused that you should not divulge the name of the claimant unless it is necessary to the investigation. Usually the only time this will not be necessary is when there is more than one employee making the allegations or when there are multiple witnesses to the incident.
After you have concluded your investigation you should always write up a summary report. This report should contain a brief description of the allegations, your findings and your recommendations for the outcome of the investigation. This should always be put with your notes from the investigation and emailed or faxed to the HR department or other management that is required to receive the information based on your company’s policies.
The last thing you must do is to meet with the complainant and accused separately and discuss the outcome of the investigation. You NEVER tell the complainant what was actually done to the accused if the accused was found to be at fault, you should tell them that you have concluded the investigation and the appropriate actions have been taken. If you find that there is not proof of the complainants’ allegations then you tell the complainant that you have concluded the investigation and there has been no substantiation of their accusations; but that if they have any further problems they should notify their Supervisor, management or the HR department immediately. The report should be made based on the requirements of your company’s policies. If the accused is found to be at fault you will tell the accused what discipline they will be receiving for the incident. If it is found that there was no merit to the complainant accusations then you tell the accused that you have completed the investigation and have not found any merit to the accusations.
Always remember that while conducting an investigation you should always remain professional and not discuss any elements of the investigation with staff that are not on a need to know basis. This is especially true if you are conducting an investigation into a sexual harassment claim. Any investigation into a sexual harassment claim should be conducted by a qualified and experienced member of the Human Resources Department. These types of investigations can expose the company and supervisors to serious legal repercussions.
You can send any comments or questions you may have to my Facebook account at Vickie.blackwell.52.