Every employment attorney at some point will be asked either to conduct or assist with a workplace investigation. Attorneys taking on this role will need to act as a neutral fact finder and refrain from zealous advocacy, a change a pace for many.
The goal of a workplace investigation is to reach a fair and well-reasoned conclusion based on the objective evidence. These investigations are subject to a reasonableness standard. Cotran v Rollins Hudig Hall Int’l, Inc. (1998) 17 C4th 93, 102, 108, 69 CR2d 900. To show reasonableness, the investigator needs to be sure to (1) speak to all relevant witnesses and (2) review all necessary documents.
Sometimes the analysis of the evidence is clear cut. For example, an employee might admit to the inappropriate behavior in an interview or the investigator might find some other so-called “smoking gun” that clearly corroborates or refutes allegations of impropriety. But this scenario is generally the exception, not the rule.
More often, investigators are given conflicting testimony and other evidence, which requires a more thorough analysis. Here are some principles to help conduct the analysis:
- Rely on other evidentiary support. Does the testimony of other witnesses corroborate or contradict the complainant’s allegations? Are there documents (e.g., emails, letters, cell phone records) that bolster or refute the claims? This evidence may include direct eye-witness testimony or testimony and documents supporting any events surrounding an alleged incident of wrongdoing.
- Analyze the logical coherence of each side’s “story.” Does the testimony provided to support or refute an allegation make sense? Does the evidence have a “ring of truth” to it? Is it plausible/reasonable/believable?
- Evaluate the motives and credibility of the witnesses. Has the witness lied about anything during the interview? Does the alleged wrongdoer have a history of behaving inappropriately? An investigator might also consider whether there is any reason for a witness to provide false testimony.
The investigator must weigh all the evidence in its totality and determine whether it mostly supports or refutes an allegation of wrongdoing.
As the number of both internal and external claims filed by employees has risen, so has the responsibility courts are placing on employers to conduct fair and thorough investigations. In this environment, it’s more important than ever for employment attorneys to be able to conduct investigations and to advise their clients on how to appropriately conduct them.
For specific guidance on all aspects of workplace investigations, including a checklist of suggested interview procedures and questions, turn to CEB’s
Advising California Employers and Employees, chapter 16A.
Related CEB blog posts:
- Need to Improve Employee Performance? Have a Plan.
- Exiting Gracefully: The Exit Interview
- Preventing Workplace Violence: 12 Practical Steps for Employers to Take
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Filed under: Compliance/Best Practices, Employment Law, Legal Topics Tagged: | employee discipline, employee misconduct, employees, employers, employment attorneys, HR manager, human resources, sexual harassment, workplace investigation