1. How to Conduct Employee Investigations
Presented by
Phil Ragusky

2. 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.

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

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

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

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

7. 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.

8. 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.

9. Gathering the Facts

10. 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

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

12. 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.

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

14. 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

15. 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

16. 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

17. 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”

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

19. 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

20. 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.

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

22. 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

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

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

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

26. Evaluating the Facts

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

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

29. 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?”

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

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

32. 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

33. Communication to Complainant
Promptly notify of investigation and findings
Written notification: letter or
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

34. 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

35. Questions?