How to Conduct Employee Investigations Presented by Phil Ragusky

Duty to investigate... Employers have a duty to investigate even if they do not have actual knowledge of harassment, as an employer can be liable if it should have known of the conduct and it failed to take immediate and corrective action. Copyright 2015 Kristina Keech Spitler. All rights reserved.

Reasons to investigate… Legal obligation Address potential discrimination Stop alleged conflict Ensure harassment stops Protect involved parties Safety concerns Policy compliance

A Complaint Can Come in Many Forms Personal Experience Informal Knowledge Suspicion Specific Concern General Unfair Treatment Anonymous Written Verbal

Workshop Outcome To understand the five steps to conducting a thorough, fair, and unbiased investigation.

Five Components to an Investigation Preliminary Considerations Gathering Facts Evaluating the Facts Writing the Report Taking Corrective Action

Preliminary Consideration Why investigate? Who should conduct the investigation? What triggers the need to investigate? When should you initiate an investigation? What do we do with the individuals involved? If necessary, separate the parties: Transfer the alleged harasser, change the alleged harasser’s schedule, or place the alleged harasser on leave with pay. Do NOT transfer the complainant, involuntarily change the complainant’s schedule, or place the complainant on leave, or burden the complainant as these actions could be viewed as retaliation. Ensure that the individual who conducts the investigation is objective. The alleged harasser should have no supervisory authority over the investigator or the investigation.

Starting the Investigation Review the District’s procedures Document the complaint Review the allegations Select an investigator Take appropriate action This step is critical and requires you to make calculated decision quickly… Preserve evidence of complaint or misconduct We have handouts of the investigation process, checklist, etc.

Gathering the Facts

Preparing and Conducting the Investigation Create a binder/folder for all documents Review background documents Prepare Timeline Collect evidence Prepare Witness Interview Questions Schedule Interviews Conduct interviews Document, Document, Document

Documentation Complaint Policy and Procedure Violations Evidence Initial witness list Interview questions Notes

Review Background Documents Complaint and related documents Policies and procedures Personnel/Title IX files Training records HR will have Safe Schools training records, Handbook sign-off sheet, etc.

Collect Evidence E-mails Phone records Time cards Receipts Computer Statements Security Videos

What To Do With the Subject Of the Complaint Remove from workplace (Administrative Leave) Due process Paid or unpaid? Change supervisory responsibilities Temporarily change reporting structure

Conducting Interviews Steps for Preparing Interviews Identify overall objective Identify witnesses Set objective for individual interviews Decide order of interviews Prepare general and targeted questions See interview format handout

Opening the Interview You are a fact-finder Explain need for full cooperation Request truthful/candid testimony Reassure/warn interviewee of no retaliation End interview with limits regarding confidentiality

Interviewing Strategies Adjust tone of interview Ordering of interview questions Be neutral: neither encourage or discourage Avoid disclosing too much information “Get more than you give”

Method of Questioning Use open-ended questions Avoid leading questions Exhaust the issue Clarify terms or vague phrases

Active Listening Tips Let interviewee talk Follow up on new allegations/incidents Avoid opinions/commentary Keep the interviewee focused on topic Ask interviewee to identify the witness Avoid Pre-judging Get specific names of others to interview

Interviewing the Complaining Party Promptly and privately Obtain facts with brief, open-ended questions Be thorough Know personnel file Identify witnesses Take notes and retain Ask employee to record the incident in writing Ask employee to keep complaint confidential The investigator should focus on being impartial and objective to gather and consider relevant facts. Taking notes, looking for inconsistencies, and seeking opportunities for more evidence and names of other potential witnesses should be a consideration as well. Asking the employee to write down what happened may help find inconsistencies.

Interviewing the Accused Interview last Provide an opportunity to respond to all allegations

Assessing Credibility Testimony Exhibiting Dishonesty Evasive, defensive, reactionary, inconsistent. Frequent “maybes” or “I don’t recall” Lengthy pauses following simple questions Responses sound unnatural or rehearsed

Assessing Credibility Body Language Exhibiting Dishonesty Perspiration, constant breaks Fidgeting Avoidance of eye contact

Assessing Credibility Testimony Exhibiting Honesty Consistent, straightforward responses Natural timing and easy to follow responses Unable to recall minute details Focused on facts

Assessing Credibility Body Language Exhibiting Honesty Open body movements Relaxed (Some nervousness is natural)

Evaluating the Facts

Steps for Evaluation Review documentation or folder of information Make credibility determinations Make findings of fact Make conclusions regarding policy and/or law

Documentation Contents Background documents Applicable policies and procedures Evidence Witness statements Transcripts of interviews and notes

Credibility Determination Review notes and recollections of testimony and demeanor of witness Compare behavior of witness Check for corroborating testimony You might ask, “is this allegation more likely to have happened or more likely not to have happened?”

Make Conclusions of Policy and Procedures Compare factual findings to standard set forth in policy and procedures

Writing the Investigation Report Introduction Methodology Individuals interviewed Allegations Chronology of events Findings of facts Conclusion of policy and procedures

Taking Corrective Action Discipline accused (if founded) Take appropriate corrective/preventative action Look at: Seriousness of offense Past Discipline Past Training Effectiveness of prior discipline Consult supervisor or HR Department Communication Accused Complainant

Communication to Complainant Promptly notify of investigation and findings Written notification: letter or email Affirm that appropriate action will be taken Notify complainant of appeal rights Reiterate the need for the complainant to report any further misconduct or retaliatory actions immediately

Communication to the Accused Discuss the specific findings of the investigations Discuss the recommended actions based on the investigation Identify appeal rights Provide only portion of report necessary to support notice of intent Inform of retaliation policy

Questions?