I’ve run into some situations lately that compel me to write about some basics of workplace investigation. Yes, I tend to wander into the weeds of workplace bullying, coaching harassers and subtle discrimination, but at my core, I am a workplace fact finder. I come to my investigations as a neutral and my job is to get to the bottom of things, while doing so in a way that makes my work both defensible and least disrupts the operations of the organization.
Some of you, readers, rarely do investigations and others do so with some frequency. The missteps I most commonly see are what I would refer to as bad habits or non habits; faulty practices that frequent investigators use and keep using, and big attempts to use sophisticated techniques by those who have little opportunity to hone them. With this in mind, I will offer up a few thoughts, theories and recommendations for all workplace investigators.
- Remember that the majority of people who are the subject of your investigations will NOT be terminated, and your approach will affect their future engagement
This is as fundamental as we can get, and what makes an employment investigation completely different in tone and technique than a criminal investigation. We are attempting to discern whether misconduct has taken place. In some cases, if the facts show serious misconduct, the organization will terminate the employment of the bad actor because of the severity and the factual support for the the conclusions. Most of the alleged misconduct that happens in the workplace falls into the category of “bad judgment,” “single moderate offense (remediable),” “good long term employee made a mistake,” “the complainant overstated the nature of the conduct,” or “violated a policy, but so have others without consequence.” I could probably come up with more, but these are the ones at top of mind. In each of these circumstances, there may be discipline, remedial action or both, including the dreaded “final warning,” but the employer may find the misconduct does not rise to a level where termination is justified or supportable. Just last month I dealt with a fabulous manager who inadvertently gave one employee an advantage over another. It was serious and called for remediation, and the manager was warned he’d be demoted if it happened again. Classic.
My point with all this? We must treat each person we interview with respect and dignity, and come at each interview with an open mind. We should always start by assuring the person we are talking to understands who we are, what our process is and what their rights and responsibilities are, and we should begin by either asking general questions or allowing them to provide us their narrative about a situation. Using interrogation techniques that involve threatening people with termination, telling them how much trouble they are in, using legal terms like “theft” and “harassment” or asking them if they think what they did was right or wrong do not belong in employment investigations. We can be firm and direct in confronting statements we think are untrue, but not by telling people we think they are lying. We can make credibility assessments without labeling people in shaming ways. These are company human assets, and we do not want to destroy them in the process of getting information from them. The gold standard for us is, “I was treated fairly. The investigation was unbiased. The outcome was fair, even if I don’t like it.” These employees, while unnerved by being asked tough questions, or unhappy with the ultimate outcome will know they were treated fairly and humanely, and when this crisis is over, they will have a decent chance of being able to go back to work and reengage, whereas those who were verbally “slapped around” will have an enduring disdain for and resentment of their employer and whichever entity conducted the investigation.
- It should now be the exception to tell or suggest to a witness to refrain from discussing our interview or the investigation.
From an earlier post: Banner Health Care 358 NLRB No. 93, the National Labor Relations Board found that blanket “gag rules” requiring all participants in an investigation to refrain from discussing the investigation while it was ongoing, with the rationale of protecting the integrity of the investigation was a violation of Rule 7, which allows employees to discuss the “terms and conditions of their employment.” The NLRB indicated that an employer has to have a legitimate business interest that outweighs that rule, including the need to protect a specific witness, danger of evidence being destroyed, testimony was being fabricated or there was a need to prevent a cover up. A blanket practice to require all employees to refrain from discussing the matter was deemed too broad to meet these criterion.
Well, that was bad enough, but if you have been paying attention, things got even harsher. A recent NLRB ruling, THE BOEING COMPANY and JOANNA GAMBLE, an Individual ,Case 19-CA-089374, JD(SF)-34-13 NATIONAL LABOR RELATIONS BOARD found that even suggesting that an employee refrain from discussing investigations in a routine checklist was a violation of their right to engage in concerted activity in the workplace. The implications here are very important, in that if as an investigator you are going to either suggest or instruct witnesses to refrain from discussing any part of the process, you must have a SPECIFIC justification, such as a witness with a substantive reason to anticipate reprisal, specific evidence that is vulnerable, evidence of falsehood or a credible basis to think there will be a cover up. This should be documented specifically before issuing confidentiality instructions. While many of us grimace at the challenges these rulings create for those of us who’d like tidy statements and limited discussion, we must be aware of our requirements and comply with them.
And, despite my having sent the appropriate citations to tens of people who disagreed with this, let me be clear again that this applies NOT JUST IN UNION SETTINGS, as the rule is precisely formulated to ensure that people have the opportunity to discuss the terms and conditions of their workplace in order to form, or attempt to form unions.
- Scope Creep is a Dangerous Thing
We all come across things during an investigation that force us to decide whether to fold the new allegations into our investigation or whether to pass them on. One of the most important evaluative standards here is very simple; if the new allegations represent a more serious set of possible infractions than the investigation you are doing, create a separate inquiry. Thus, while investigating possible isolated misuse of a company vehicle, you gather data from corporate information systems that reveals widespread misuse of corporate credit cards, finish the limited inquiry and conduct the broad, more serious one separately. There are several reasons for this, the most pertinent of which is to avoid the minimization or escalation of the initial allegations. If the alleged misconduct is unrelated (those allegedly misusing the vehicle are not implicated in the credit card allegations) the facts in their “story” should not be conflated with the facts of the allegedly more widespread conduct. Similarly, if there is overlap in the parties involved, those parties should all be treated equally, rather than have one set of allegations lay deeper suspicion on the others. More practically speaking, when a series of minor infractions mount up as an investigation is conducted, it is important that the investigation not be prosecutorial, and that minor infractions that would not otherwise have been addressed be given their proper weight. When, for instance, an incidentally reviewed employee’s email to a colleague indicated that on a particular day she would be “slipping out ten minutes early” for a child’s concert, the investigator wanted to add this to findings as “misusing time.” This was in an organization that did not maintain time clocks and was known for their focus on productivity over face time. It was my rather challenging job to convince her that while this could be shared as part of her report, it was prudent to stick to the allegations that were being investigated in her findings of fact, avoiding a “piling on” of things best referred to in credibility or narrative portions of her report. If she had concerns about repeated infractions, I suggested, a separate investigation would be warranted.
- Your notes are your notes.
Honestly, whether you type out things verbatim on your PC or scribble lines with a crayon, the notes you take contemporaneously are your notes. Save them. You can type them up, you can clarify them, you can correct your grammar and spelling, and you can add the questions you asked to them if you like, BUT SAVE YOUR RAW NOTES. There is no such thing as “draft notes,” because notes are by nature contemporaneous. If you choose to make changes, as most of us do (mine are fairly illegible unless I do a quick “clean up” after I interview) make them in a way that is transparent; for instance, if you take notes on a computer, save the originals and then make any adjustments in a different font or a different color. Save both versions. If you type them up and “fix” grammar and spelling as you go, staple the originals to the new ones. Why? It is a fair question for someone scrutinizing your work to ask if the notes that formed the basis for your report or findings were contemporaneous. If the answer is “no,” you want to demonstrate that any changes you made were for purposes of clarification, readability or future recall and that you did not substantively change the notes. Honestly, I recently came across someone who crossed out one thing and wrote another, and when I asked why it had been changed, the answer was, “Because I felt bad I said that.” Ouch.
Thanks for reading my blog. If you find it helpful, please share it with others. Happy New Year.