As an employment law attorney, I regularly advise employers on personnel issues, including the conduct of internal investigations into employee complaints. Colleagues at my firm have a similar practice. We review investigation summaries and counsel human resources professionals in the conduct of investigations into internal complaints, including those involving discrimination, harassment and retaliation. I thought it would be interesting to take a survey of the attorneys at our firm regarding what issues regularly come up in our review and assistance of our clients with internal investigations. What follows is a list of the most common problems that arise and suggestions for best practices when conducting the investigations.
1. Define the scope of the investigation from the complainant. Too often the HR professional does not clearly define the scope of the investigation with the complainant to ensure all of the issues are identified. This failure at the beginning of the investigation often leads to incomplete results and the need to extend the duration of the investigation. We suggest using an issue confirmation memo, which can be a simple e-mail, to the complainant that states what issues have been raised. In that way, the complainant and the HR professional are on the same page from the start of the investigation.
2. Prepare for the interviews. Most HR professionals juggle many tasks every day. There is pressure to finish any particular task because there are ten other things to do and inevitably more will arrive tomorrow. As a consequence, some HR professionals do not devote sufficient time to the organization and preparation for each witness interview. Preparation will allow the interviews to be more efficient and reduce the likelihood that a witness will need to be interviewed twice or that critical questions will not be asked. Take the time to plan the process and identify the issues needed to be covered with every witness.
3. Collect the facts. Start your questioning by asking broad questions; do not focus too soon on the narrow questions that are directly pointed at the key issue. A good HR investigator is a neutral fact-finder and must remember to get at the facts without asking questions that imply a legal conclusion, such as “Do you feel that you were harassed?” Focus on the basic facts; ask the 5 W’s (Who, What, When, Where and Why). Listen and ask follow-up questions. The collection of those facts recorded in the HR professional’s notes will be the foundation for reaching a factual conclusion and drafting the investigation summary. If the collection of facts is incomplete, then the remainder of the investigation will be inevitably flawed.
4. Check the internal procedures and identify relevant policies. It can be very detrimental to the investigation process and the employer’s ability to rely on the investigation as an attempt to do the right thing if the employer’s internal procedures have not been followed. The HR professional must be aware of a policy, procedure or guideline that impacts the investigation process itself. Further, the investigator should be aware of the relevant policies given the particular issues raised by the complainant. Many HR professionals will be called upon to identify whether an organizational policy has been violated. Consequently, the policies should be known during the investigation and referenced in the investigation summary.
5. Make a decision. Face the facts: regardless of which way the HR professional finds in an investigation, someone will be unhappy. Weighing the evidence and reaching a factual conclusion is the purpose of the investigation. Inexperienced HR professionals sometimes are looking for the slam dunk video or the confession; unfortunately, those rarely appear. The HR investigator has to become comfortable in the assessment of the facts to make a decision on what probably happened (preponderance of the evidence; the standard for public sector employers in California) or a reasonable conclusion after a good faith investigation (the standard for private employers in California).
6. Write an investigation summary. Far too often we ask to see the investigation file after litigation has begun and we find there are notes of witness interviews, but no investigation summary. It becomes very difficult to recreate the thought process used to arrive at the factual conclusions six to twelve months after the conclusion of the events. In addition, the writing of the investigation summary forces the investigator to be very logical about the factual conclusions. The report does not need to be especially lengthy, but it should address how the complaint came forward, the issues set forth by the complainant, the identity of the witnesses, the policies implicated, the facts collected, the conclusions regarding the issues raised and the rationale for reaching the factual conclusions.
7. Be thoughtful about the conclusions. The factual conclusions are the whole point of the investigation. The HR professional should be logical and methodical in explaining why a particular factual conclusion has been reached. A reader who does not have knowledge of the investigation issues should be able to understand how the conclusions were reached by reading that section of the summary. The thought process should be transparent. If the analysis is unfocused, it should be rewritten to show clarity of thought.
8. Explain any credibility resolution. Often the HR professional will state that one witness was more credible than another. Yet, the reasons for the credibility finding are not described. The experienced HR professional will rely on more than demeanor evidence to determine credibility. Often the investigator will assess the logic of the acts, the consistency of conduct and the circumstantial and corroborating evidence to make a determination about the credibility of the witness. A short explanation of that analysis should be provided in the investigation summary.
9. Close the loop with the complainant. Some HR professionals fail to circle back with the complainant and state the investigation has been completed. Often the reluctance to reach closure with the complainant is due to the fact that the HR professional is unsure how much to divulge to the complainant. The accused has a privacy interest in any disciplinary action. The HR professional can explain that steps have been taken to ensure inappropriate conduct does not occur in the future, but specific discipline should not be shared with the complainant or witnesses. At the very least, it is important to let the complainant know that the organization has an express policy that prohibits retaliation and if conduct occurs that the complainant believes is retaliatory, the complainant should come forward.
10. End the investigation. Some inexperienced HR professionals want the perfect investigation. They are uncertain about whether “there is enough” to reach a conclusion. Consequently, the investigation continues for far too long. There is always another witness to interview or some other angle to explore. Experience provides confidence in arriving at a conclusion.
Every HR professional should have a foundation of basic skills to use during the internal investigation. As the HR person becomes more experienced, the process becomes more comfortable even though each investigation is a unique event with idiosyncratic challenges. A methodical and thoughtful process will be extremely valuable at each stage of the investigation and will result in a more reliable conclusion. The investigation that has such integrity will be easy to defend, if necessary, if an issue goes to litigation. Even more importantly, because so few investigations become part of litigation, the organization takes confidence in the process and employees understand their complaints will receive a fair internal review. Every employer should ensure that its internal investigators, usually human resources professionals, are competent in this area.
- John Baum