Whether responding to an anonymous whistleblower or the documented observations of a supervisor, your business needs to investigate every allegation of workplace misconduct seriously and thoroughly.
In our previous post, we discussed measures that your business could take before an investigation to make the process more effective and streamlined. With a defined plan and team in place, you can focus efforts on the unique claims of this particular investigation, bypassing any confusion or false starts.
For this post, let's discuss what you can do during an investigation to more effectively identify misconduct, locate responsible parties and take appropriate action.
By swiftly responding to an accusation of wrongdoing, your business will be able to preserve appropriate documents and evidence that could potentially be lost. In addition, certain legal expectations are in place that demand "prompt" investigation -- charges of sexual harassment in particular.
The American Bar Association recommends urgent action if the accused employee is supervising the accuser, stating that: "juries seem almost instinctively to demand promptness not only in initiating but also in concluding an investigation."
Further, by acting on a report quickly, the notifying employee is much less likely to contact outside parties -- such as the media -- to report their concerns.
Do you want to be proactive and better prepare for an internal investigation before it even starts? Read Part 1 of this blog to learn more about creating a comprehensive investigation plan.
When starting an investigation, you should define a clear timeline that offers sufficient room to thoroughly pursue the relevant documents and witnesses. However, you should avoid dragging out your inquiries or endlessly expanding their focus.
When referring to the attitude of the Department of Justice with regards to corporate internal investigations, Assistant Attorney General Leslie R. Caldwell stated: "[W]e do not expect companies to aimlessly boil the ocean. Indeed, there have been some instances in which companies have, in our view, conducted overly broad and needlessly costly investigations, in some cases delaying our ability to resolve matters in a timely fashion."
Never interview employees one-one-one, particularly any staff members that are suspected of wrongdoing. This approach creates an opportunity for the employee to challenge the interviewer's notes or recollection.
Instead establish a two-person team to conduct the interviews. One party should handle the actual questioning, while the other person can focus on note taking and recording their observations of the employee and the interview as a whole.
Put simply, you need to make it clear that any counsel present is acting on behalf of the company, so any attorney-client privilege that exists is solely at the discretion of the business. And this privilege can be waived by the company at any time.
Before ending the interview, convey to the employee that they should feel free to provide any additional information at a later time. Provide them with a rough timeline of when the investigation will be concluded so that they are encouraged to offer any further details in a timely manner.
By creating open lines of communication with potential witnesses or suspects, you can decrease the likelihood that they will hold back on relevant knowledge or share details with outside parties.
To avoid any appearances of impropriety, no person involved in the investigation should be involved in any subsequent disciplinary actions (or lack thereof). Instead, have your investigative team summarize their findings in a written report that can be provided to a separate manager or adjudication team that is then responsible for determining appropriate action.
Depending on the nature of the allegations, the final findings of the investigative team may have to be disclosed to an outside party or government agency, making them a public record. And routinely these public documents can be viewed by competitors or future litigants.
When including records or notes in an investigation, have your team bear in mind this potential future disclosure. If possible, avoid including any confidential data or trade secrets in the investigative process.
An effective investigation requires prompt action, diligence, and thorough examination. By taking these measures and providing the appropriate business ethics training, not only can you more quickly address any misconduct but also avoid potential legal fallout from the actions of your employees.
If you would like to explore this subject in more detail and get some expert advice, we recommend that you fill out the form on the right to request a free download of our Internal Investigations Best Practices Webinar.
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