Given the employer’s duty to “take all reasonable steps” to prevent discrimination, harassment, and other unlawful practices (Govt C §12940(h)(5), (k); 29 CFR §1604.11(d)), employment lawyers can expect to conduct—or assist a client in conducting—a workplace investigation. Although most will be well-acquainted with the fact-finding process, the role of a litigator and the role of an investigator are quite different and implicate different goals, interests, and naturally, a whole host of different problems.
Here are ten tips for successfully navigating investigatory interviews:
- Speak with the complainant first; then the alleged wrongdoer. In many instances, the investigation may be prompted by a verbal or hastily written complaint. So it’s important to begin the investigation with the primary parties to form an accurate framework of the allegations and to find out who else knows what you ultimately need to know.
- Interview all potential witnesses. Interview anyone else who may have witnessed the alleged behavior, have knowledge of any subsequent reactions, or have otherwise been involved in the matter. Witnesses typically include, but aren’t limited to, current and former coworkers, customers or clients, supervisors, managers, corporate personnel, and, in some instances, other third parties who may have witnessed on-duty or off-duty conduct.
- Keep parties to separate corners. It’s rarely a good idea to bring the primary parties together to “work out” the issues, at least initially. Although the approach may be helpful at the conclusion of an investigation, it’s generally prudent to conduct a full investigation before bringing them together.
- Re-interview the primary parties and allow the alleged wrongdoer an opportunity to respond. The investigator must listen to both sides, provide all parties an opportunity to correct their statements, and provide the alleged wrongdoer a chance to respond. Cotran v Rollins Hudig Hall Int’l, Inc. (1998) 17 C4th 93.
- Ask open-ended questions. Allow the witnesses to talk and tell their stories.
- Note that interviews aren’t completely confidential. The parties and witnesses aren’t your clients. Explain that what they say is not completely confidential and may be disclosed to those necessary to resolve the matter.
- Keep allegations confidential. Remind witnesses that they must keep the details of the allegations confidential. In particular, ensure that the alleged wrongdoer doesn’t speak with, or attempt to influence, the complainant or other potential witnesses.
- Prevent retaliatory conduct. Remind employers and supervisors that retaliation against any witness for participating in the investigation is illegal. Explain this protection to witnesses and instruct them to report any incident to human resources.
- Avoid zealous advocacy. Refrain from overly contentious or aggressive questioning. An investigation isn’t a deposition, and witnesses won’t be thoroughly cross-examined. Remind the witnesses that they are free to leave or to take a break during the interview. Don’t do anything that may be interpreted as detention or false imprisonment. Fermino v Fedco, Inc. (1994) 7 C4th 701, 717 (detention and means of questioning of employee must be “reasonable”).
- Don’t badger the complainant. Although employers are certainly entitled to ask a complainant for details on the allegations, an employer isn’t entitled to badger a complainant or to require that the employee confront the alleged harasser or to submit the complaint in writing. See Kelly-Zurian v Wohl Shoe Co. (1994) 22 CA4th 397.
Keep in mind that workplace investigations implicate many other legal issues, including ethical considerations, privacy concerns, and the dueling rights of the complainant and alleged wrongdoer with respect to any remedial response resulting from the investigation.
Other CEBblog™ posts you may find useful:
- Conducting a Fair Workplace Investigation
- Action Plan for Handling Harassment Claims
- Preventing Workplace Violence: 12 Practical Steps for Employers to Take
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