Investigative Preparedness: What Every Organization Should Have in Place Before the Crisis Hits
1) Organizational Preparedness
Some large organizations routinely conduct investigations and have well-established policies and procedures, careful protocol and guidelines for investigators to follow. Many, however, do not. Even huge companies sometimes allow each investigator to pursue matters using their own individual expertise and preferences. While this may never cause a problem, it does create a significant vulnerability should the organization's practices be carefully scrutinized and the inconsistency identified as a form of sloppiness or even worse, bias.
Since the majority of organizations do not have full time investigators, and many only conduct a few investigations each year, it is not necessary for every organization to have elaborate manuals and procedures regarding investigation; nevertheless, there are certain steps organizations should take to prepare themselves to conduct high-quality investigations and to ensure a reasonable level of consistency from investigation to investigation:
a) Policy Requiring Cooperation One of the most frustrating things that can happen in an investigation is the refusal of a key individual to cooperate. Especially when the investigator has reason to believe that the individual can provide essential data, it is important to have leverage to persuade them to be forthcoming. While there are a variety of strategies that investigators can use to be persuasive, there is little reason that employers should not have policies in place that require employees to cooperate with employer-initiated investigations. While policies are only words on paper, and threats of discipline for failing to cooperate should only be used as a last resort, this type of policy sets an expectation and a tone which is helpful in orienting employees to their duty to their employer.
b) Identify an Organizational Clearinghouse Complaints are made throughout organizations, and every complaint calls for analysis and decision making about what steps should be taken to address the situation. While most organizations are leery of micromanagement, the exposure organizations can develop in poorly handled complaints supports a process by which decisions are at least reviewed, if not made collaboratively with a knowledgeable party that can ensure consistency and appropriateness of response. Called an "investigative coordinator" in some organizations, it is this person or persons who should receive reports from all intakes and review any action taken, deciding whether to catalogue the matter as being appropriately handled at the level closest to the employee, to contact the party who conducted the intake for further information and consultation, or whether to immediately escalate the matter for formal investigation. Furthermore, this would be the individual responsible for determining the appropriate investigator, whether internal or external.
2) Positions and Declarations There are a number of investigative practices which are debatable - there are legitimate differences of opinion as to whether certain steps should be taken and certain methods used. Organizations should have firm positions on these matters, and they should be observed in each and every investigation that is conducted. Exceptions should be well documented and rare.
a) Tape Recording While under certain collective bargaining agreements or public laws, recording is required in employment investigations, in most work environments it is optional. Experts disagree on the value and importance of making electronic recordings of investigative interviews. Those who favor them like the absolute certainty that there can be independent verification of what was said, and the convenience of reviewing the tapes rather than relying on note taking. Opponents argue that recordings can provide fodder for manipulation ("what was happening during that long pause?") and create a chilling effect on the interview. Many organizations record interviews and many do not. There should be consistency in this practice - if tape recordings are to be made, there should be clear technical requirements and appropriate equipment should be made available to investigators. Protocol for storage of tape recordings must be established (i.e. encryption standards for digital recordings). Most importantly, if electronic recordings are to be made, they must be made for each and every interview conducted within an investigation.
b) File Review Investigators find that reviewing personnel files can be illuminating and helpful for a variety of reasons - however the timing of that review can be important. If an investigator routinely reviews personnel files prior to interviewing parties, information might come to his or her attention that could be highly prejudicial and create bias.
Gerry has made a claim of inappropriate conduct towards his supervisor. In a routine review of his file, you find that he was suspended two years ago for coming to work under the influence of alcohol.
i) While one can declare that they are able to put aside impressions gained from possibly unrelated information, it might be argued that avoiding the situation altogether is preferable. Therefore, some organizations instruct investigators to only review personnel files after interviewing the subject. Of course, the argument against this is that should the file reveal substantive and previously undisclosed information, that a second interview might be necessary, thereby making the procedure less efficient. As with tape recording, this is an endlessly debatable matter, but organizations should have firm procedures for the timing of personnel file scrutiny.
c) Number of Investigators Particularly if investigators are not highly experienced, organizations might institute a policy that all interviews are to be conducted with two investigators present. Usually this is structured so that one individual asks the questions while the other serves as a mute observer and note taker. Some organizations believe that putting two investigators in a room with one subject can be intimidating and put a damper on the rapport and intimacy necessary for an investigative interview. Defining the circumstances under which "two on one" and "one on one" interviews are conducted is essential, and most essential is a set of guidelines which ensures that within a particular investigation, the composition of the investigative unit (a single person or a team) is consistent from beginning to end.
d) Document Retention and Destruction Much can be made about the contents of an investigative file, and organizations should ensure that from matter to matter an investigative file contains similar documents. Most importantly, there should be clear standards for retaining and destroying documents. Many investigators "clean up" or "fill in" their notes immediately following an interview. For instance, someone who has used abbreviations might fill in the full words to ensure that they will properly recall what was said, or misspellings might be corrected in notes made on a computer. It is essential that investigators have clear guidelines regarding the retention of prior versions of notes under these circumstances. It is generally recommended that those prior versions be retained. Other record retention issues include the proper designation and labeling of documents considered to be privileged, the retention of drafts of reports or memoranda, and the appropriate handling of documents and items examined but which must be returned or otherwise disposed of.
Practice Tip When "marking up" original notes, do so in a color or font that can be distinguished from the original. The investigator can then provide a complete disclosure of any modifications to the original notes, ensuring that there were no substantive alterations to the contemporaneous notes.
e) Third Party Presence The presence of a third party (or a fourth party in the case of two-on-one interviews) is sometimes outside an organization's control, such as an employee exercising Weingarten rights in a union setting. Many organizations, however, relinquish what control they do have unnecessarily or by default. A careful review of Weingarten[1] leaves several issues in the hands of the employer; for instance, an employer is not under any obligation to inform an individual of the right to the presence of a union representative unless that has been agreed to contractually. An employer has reasonable control of the interaction between the union representative and the employee during the interview. Some organizations take the position that you can never give employees too many rights, and provide notice to employees prior to or at the time of any interview that they are entitled to union representation. Others live by the letter of the law and only provide representation when it is requested in accordance with Weingarten. This is a matter of organizational policy and philosophy. Inconsistency in this area is problematic, and should be avoided by taking a clear and organized approach to union representation. This should include seating arrangements (will the union representative sit next to, or behind the employee?) and protocol for allowing consultation or participation (under what circumstances can the union representative initiate a consultation?) In non union environments, employers have broad discretion regarding whether and when employees might have a "support person" or "witness." Some argue that this permission creates a higher level of faith in the investigation for employees and they point out that employees rarely exercise the permission if it is given. Others feel that an uninvolved third party's presence merely increases the risk of information being shared inappropriately and that it does not offer any benefit to the organization or the parties. Finally, most organizations take the position that outside attorneys are not permitted to be present when the employees they represent are interviewed in an internal investigation. Realistically, when the employee's cooperation hinges on the presence of the attorney, some exceptions are made. It is important to have the individual or individuals who can authorize such exceptions clearly spelled out. In many organizations, the decision is made that if an attorney must be present for an essential interview to occur, that in house counsel will also be present.
3) Consistent Forms and Notices: Organizations are well served by creating forms to ensure investigative consistency and integrity. While not every step on an investigation is well served by filling in a form, organizations should consider putting the following in place
a) An intake form. An effective intake is essential for a smooth investigation. It is often very helpful for managers and supervisors, when being trained or instructed on the taking of complaints, to be provided a form that helps them conduct the intake in the proper manner. Once that form is completed, it should be sent, either by fax or electronically, to whomever serves as the organizational clearinghouse on complaint management. This is usually a Human Resources professional but can also be Counsel or another designated party. Once received, the party serving as the clearinghouse can respond with a simple acknowledgement, can initiate a telephone consultation to ensure proper handling occurs, or can initiate a higher level intervention, such as an investigation. This transaction should then be documented on the intake form in the hands of the clearinghouse, and any follow up noted by either the initiating party or the clearinghouse. The result is a solid record of the complaint and a solid record of the action taken in response to the complaint. Because managers and supervisors recognize their liability if they are viewed as having ignored or failed to properly address certain complaints, they recognize that forwarding the form provides them appropriate protection and corroboration that action was taken.
b) Notices checklist. There is a great deal of information to be transmitted at the outset of an interview, and therefore a great deal of information to be absorbed by the interviewee. In some cases, the information provided or not provided becomes a source of criticism of the investigation and its integrity. Employees can claim that they were misled as to the purpose of the interview, or were guaranteed confidentiality that was then not honored. For this reason, it is wise to create a "checklist" of notices to be reviewed with interviewees, and which they can take with them at the conclusion of the interview. This checklist should include a review of the purpose of the interview, conditions for sharing or not sharing information, instructions regarding reprisal, explanation of how notes will be used and retained, advice or instruction regarding discussion of the investigation or interview with others, and notice as to the possible consequences if it determined that any party has violated policy. With a stable set of notices, investigators can practice reviewing the detailed information in a helpful and conversational way, and by asking interviewees to check or sign each item, help the interviewees to focus on essential information. The signed version of the checklist should be retained in the investigative file and a blank form offered to the subject for their own records. In the case of telephone interviews, there should be an effort to transmit the document to the interviewee at the time the investigation is commenced, and to receive a verbal affirmation of each item, which can then be recorded in the investigator's notes.
c) Cover or summary sheet. Since investigations are generally concluded months or even years prior to the time that discovery proceedings might call upon the investigator to recall them, a summary sheet can serve as an aid in recollection. A cover sheet should identify the complainant, witnesses and respondents, include a list of evidence reviewed (at least generally - a very detailed list should be included in the file), the period of time during which the investigation was conducted, and the date a report was issued verbally and/or in writing. Optionally, a brief summary of the allegations and findings can be incorporated into this summary sheet.
4) Smart Technology Increasingly, employees leave "electronic footprints" that become valuable evidence in investigations. E-mails, cell phone records, pager history, web forms, IM's and SMS messages are among the many types of records that are useful to investigators. Since these are generally produced and retained on employer-provided equipment, it is wise to plan for the discreet and prompt seizure of such records. Retrieval of SIM cards, backing up e-mails sent and received to ensure they are not deleted from the system, capturing cookies and browser history, retrieving data card records and obtaining surveillance tapes where appropriate should be anticipated well in advance of a need to investigate. Standard inquiries should include a query as to whether employees have documents stored on jump drives or external disks. A person with expertise in information technology should be able to institute investigative data retrieval with a simple request from the appropriate authority, and at that point, electronic records should be frozen (unalterable) and seized.
5) Personnel Policies and Practices During the course of an organization, it is not always possible to proceed with "business as usual." Complainants may express fear of reprisal, risks of maintaining an alleged bad actor in the workplace may be too great, or simple conflict between parties and witness might impeded productivity. Employers should have policies in place that permit the removal or reassignment of parties to an investigation in the least disruptive and least damaging manner possible. These policies should include rapid tracks to paid administrative leave, temporary assignment to alternative work areas and restrictions on access to areas or departments. Supervisors MUST be trained on the proper response to inquiries about employees who are removed from the workplace pending the outcome of an investigation to avoid potential defamation or reprisal claims.
6) Preparing for Conflicts When a complaint is brought against a high level executive or a manager of a human resources function, organizations should have a plan for conducting an investigation at arms length. For small organizations, agreements with other organizations to "swap" HR resources at a reasonable fee may be workable; otherwise, identification of outside investigative resources prior to the time they are needed is helpful to facilitate swift decision making
[1] 5 U.S.C. 7114(a)(2)(B) provides that "an exclusive representative of an
appropriate unit in an agency shall be given the opportunity to be represented at any
examination of an employee in the unit by a representative of the agency in connection
with an investigation if - (i) the employee reasonably believes that the examination may
result in disciplinary action against the employee; and (ii) the employee requests
representation."
