When an employer receives a complaint or report of wrongdoing via its hotline, web form or through any other means, the company is obligated to take the report seriously and act on it quickly.
Depending on the type of allegation, there may be regulations that govern how the complaint is handled and the timeline for the workplace investigation and resolution. So it is important to have in place a procedure for receiving and triaging reports.
The first decision to be made is whether the report warrants an investigation, and this cannot be taken lightly. Failure to investigate misconduct that should be investigated can have dire consequences for the employer.
If the allegation warrants it, an employer may need to take immediate action, such as separating the parties to the complaint, speaking to them individually or referring them for counseling, mediation or both. Allegations of harassment, or sexual harassment in particular, require sensitive handling and possibly immediate removal of one or both parties to another location.
Assuming the decision is made to investigate the report, there should be protocols for how to conduct an investigation, including a method for choosing the investigator, assigning the case and tracking and reporting on the investigation.
If you decide not to investigate, this decision needs to be documented thoroughly. State the reasons for the decision to decline to investigate and ensure they are defensible. Assume your decision will be questioned and make sure you have valid grounds.
When deciding who will investigate an allegation, you will need to decide whether to use an outside investigator to perform the workplace investigation. There are many factors to consider in this decision. You may need an investigator with specific skills, experience or legal knowledge that are unavailable in-house. You may have concerns related to perceived bias or even actual bias that would pose a risk when using an internal investigator.
Depending on the type of investigation, you may need to consider the gender of the investigator (in a sexual harassment investigation, for example). If your workplace investigation covers multiple locations, cities or countries, you may need to consider using resources in another country, someone who speaks a particular language or someone who has local knowledge.
The bottom line is that you’ll need to choose an impartial investigator who has the skills, knowledge, access and experience required by the case. The investigator selected to conduct the investigation should:
During the planning phase, the employer and investigator will need to determine the scope of the investigation. This involves eight areas:
1. What is being investigated?
The first step that we take is to set out as precisely as possible exactly what it is that is being investigated. It may be a specific allegation or series of allegations. It may be a number of interrelated issues or allegations. We make very effort to keep the issue(s) as narrow and focused as possible.
2. What is the overall approach to gathering the evidence?
We then prepare a brief outline setting out the overall approach to conducting the investigation. We include the investigation strategy and what investigative steps will be taken, and in what order.
3. What and where is the evidence?
We identify with the employer who should be spoken to and what documentary, physical and digital evidence has to be gathered. The following categories are guideposts for the investigator to use in that process:
• Laws and standards
Our investigators will determine the legal, regulatory and ethical standards that apply to whatever is under scrutiny. Knowing these standards gives our investigators both the context and a baseline for the investigation.
Our investigators will request a list of the people who they will likely want to speak to during the investigation. The employer will then provide the investigators with the contact information for the witnesses. Our investigators will then determine the method to be used to conduct the interviews – in person, by phone or by some other means.
Our investigators will determine what documents may be relevant to the investigation. The employer will the identify who has them, where are they and how they can be obtained as quickly as possible. Once the documents are obtained, they will be thoroughly reviewed.
• Physical and digital evidence
In matter where physical evidence is a consideration, our investigators will determine where the evidence is located, how it is going to be secured, whether a chain of custody needs to be established, and whether expert assistance will be needed to preserve and examine it.
4. What problems might arise during the investigation?
Our investigators will identify possible special considerations that, based on knowledge of the case or past experience, may arise during the investigation. Possible solutions will be considered for tackling them – or getting around them - should they arise.
Typical challenges for investigators include:
• Lack of cooperation
• Fear of reprisal
• Collusion between witnesses
• Culture / language / capacity
• Access to sources of evidence
• Potential destruction of or tampering with evidence
• Need to use any investigative powers you have at your disposal, such as a power of entry or a power to subpoena
5. What resources will be needed?
Our investigators will determine how many people will be needed to conduct the investigation within a reasonable time, the technical or other support will be necessary and the potential cost of the investigation. In making these determinations, our investigators will consider and predict to the extent that is possible (a) the number of investigators and support staff required, (b) research, (c) forensic and other experts, (d) outside legal advice, (e) travel and related costs, (f) translation, and (g) transcription.
6. How are internal and external communications going to be managed?
If relevant, our investigators will assist in planning how to (a) announce the investigation, (b) manage any information that comes in, (c) keep those interested updated on the progress of the investigation, without impacting the integrity of the investigation itself, and (d) make sure anyone who should be ‘in the loop’, actually is.
7. What are the milestones and timelines?
As the plan is developed, our investigators will set out realistic targets and goals for completing various stages of the investigation.
8. When will the investigation be completed?
Our investigators will establish a rough estimate fpr when the investigation will be completed. Factors to be considered in making this estimate include (a) the complexity of the issue(s), (b) how much background research has to be done, (c) how much evidence is there to be collected, including number of potential witnesses and amount of documentation, physical and digital evidence, (d) how any impediments identified in section 4 will factor into the equation, (e) how long it will take to analyze all the evidence, and (f) how long will it take to write a report.
Our investigators will conduct limited research on the backgrounds of the witnesses to be interview.
The interview phase of the workplace investigation has a single purpose: to find out the truth. With this in mind, we may want to use a variety of interview techniques and strategies to achieve that end.
The first step in conducting interviews is contacting the witnesses and setting up times, places and methods. We attempt to put witnesses at ease in an attempt to increase our chances of getting them to communicate openly by:
When deciding the order of interviews, we often consider the flow of information, or the order of the story. Generally, the first person interviewed is the person who made the report. If there are others named in the report, they are interviewed next. We then interview any witnesses to the incident or allegation. This can sometimes lead to more witnesses being identified, and they are interviewed as well. The last person interviewed is the subject of the report or allegation.
We record interviews, if possible, so that there is no doubt about the ethics of the interviewer and the quality of the questioning. We find that recording our interviews with witnesses removes the temptation to interpret what the witness is saying, providing the witnesses exact words for direct quotes in the investigation report.
Evidence gathering can be the most time-consuming part of the investigation and involves collecting both physical and digital evidence. Everything our investigators find out is potential evidence and it is important to consider every piece of evidence we uncover, whether or not it fits in with the other evidence and impressions related to the case.
All physical evidence must be stored securely and logged. Digital evidence needs to be authenticated, captured, preserved and stored somewhere as well. If you’re using a case management system for your investigations, you can upload your digital evidence directly into the case file, where it will be secure, organized and accessible.
It’s important to follow best practices for chain of custody when securing evidence. Chain of custody is a way of documenting evidence that shows the seizure, custody, control, transfer, storage and analysis of a piece of evidence. It’s a mechanism to record everything that was done to a piece of evidence to ensure its integrity and prove that it hasn’t been tampered with.
Consider every piece of evidence and how it contributes to the narrative of what happened. Remember that your job is simply to find out the truth, and weigh each piece of evidence against this requirement. There are many types of evidence and each one can contribute to a successful workplace investigation.
It is your job to come to a conclusion, based on your interviews and the evidence gathered. Your conclusion is simply whether or not the allegation or report is found to be correct.
A workplace investigation that is deemed to be inconclusive is a failed investigation. If you can’t come to a conclusion, consider conducting more interviews, gathering more evidence and going back over the interviews and evidence already gathered.
Based on the conclusion you reach in your investigation the company must decide whether or not to take action.
Action could include:
If the company decides to not take any action, this should be documented, along with the reasons.
The best, most comprehensive, fair and timely workplace investigation is worthless without the documentation to prove that the investigation was comprehensive, fair and timely. At each stage of the investigation steps should be documented, but the final product, the investigation report, is the summary of all the steps, interviews, evidence and conclusions drawn. It’s the final product and may be read by many different audiences, therefore it must be clear, accurate, succinct and credible.
In order to reduce the number of incidents and investigations, companies must be continually evaluating and analyzing their risk. They can do this by aggregating and studying their investigation data to determine:
This is where case management software can really deliver ROI, by providing myriad options for visualizing data in a way that is meaningful to the organization.
Once an investigation has been completed, documented and resolved, you’d think the company can now close the book and move on. But that’s not necessarily the case. It’s important to follow up after the investigation to gauge the effect that any actions have had on those involved in the investigation and others affected.
Follow-up also includes looking at any changes that were implemented as a result of data analysis and whether these changes are having an effect on the issues and incidents being investigated. This step should be continual and will put the company in a good position to anticipate and manage risk and spot trends before they become problems.
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