The best scenario for an employee investigation usually is that the issue being investigated never reappears after the investigation is concluded and acted upon.

1. If there is no wrongdoing, that has been established and documented, and that conclusion is never questioned.
2. If there is wrongdoing, it is addressed and does not recur.

The more effective the investigation, the more likely this best case scenario is.

However, even if the investigation was flawless, the issue may return in some fashion, including litigation. If litigation is instituted or threatened, it is critical that the employer be able to document that it took the proper measures every step of the way.

Certainly an investigative report and documentation of any appropriate disciplinary action, both steps taken at the end of the investigation, are critical aspects of the employer telling its story. Often it may also be helpful to document some important points in the interviewing process with simple forms required of the witnesses near the beginning of the process.

Work Backwards

To highlight some of the things that can be accomplished with these forms, work backwards from some of the things that can go wrong in an investigation arising out of the interviews:

• The complaining party later claims the company did not address certain complained-of behavior, but the company in fact was not aware of that behavior.
• Retaliatory action is taken (or not taken but alleged) by a subject of the investigation or other individual during or after the investigation.
• The subject of the investigation claims that his or her reputation was damaged by the company during the course of the investigation.
• The subject of the investigation claims that the company was on a “witch hunt” and the outcome of the investigation was a foregone conclusion. This can manifest itself in a discrimination lawsuit – for example, a male who is a member of a legally protected class claims that he was disciplined in a discriminatory fashion and the victim of a biased investigation.

Close the Gaps with Documentation

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Simple pre-interview acknowledgements by the witness can assist in closing each of these windows of opportunity where things can go wrong. To oversimplify somewhat, there are three types of interviews:

1. the complainant(s)
2. the accused(s)
3. third party witnesses

It is usually beneficial to document various things with each interviewee before the first question is asked. Indeed, the 3^rd and 4^th bullets arguably cannot be as effectively addressed after the interviews have taken place.

 Sample Pre-Interview Statement

I will conclude this post with a sample of what a pre-interview statement with a third party witness might look like, then in the next post look at statements that might be used with the complainant(s) and accused(s). I have inserted numbers in the statement to cross-reference some comments that follow the sample.

PRE-INTERVIEW STATEMENT OF THIRD PARTY WITNESS

      [1] I understand that the Company has received a complaint about certain conduct of another employee. I understand that the Company has determined it has a legal obligation to investigate this complaint.

I understand that the purpose of today’s meeting with _______________________ is to determine what happened so that the Company may respond appropriately to the complaint.

      I understand that the Company has not yet made any conclusion as to whether facts stated in the complaint against the employee are true or as to whether any Company community member engaged in inappropriate conduct.

      [2] I agree not to discuss this matter with any member of the Company community. [3] I understand that no Company employee is permitted to retaliate against me for participating in this investigation. I agree to bring any conduct I perceive to be such retaliation to the Company’s attention so that it can be promptly addressed.

 __________________________________

Date: ______________________________

1. The first paragraphs set the stage of the interview and document that the investigator is making it clear to the interviewee that, whether the allegations are true or not, the company has an obligation to follow up on them. It is simply gathering information and not rushing to judgment. This statement does not identify key parties. That approach may or may not fit the strategy of the particular investigation.

2. The document next addresses the issue of confidentiality. Maximizing confidentiality to the extent possible while still fully exploring the allegations, most human resources professionals and management employment lawyers agree, in turn maximizes the effectiveness of the investigation. It also protects the company against defamation claims by the accused. Of course, the scope of how – and how much – the company may impose confidentiality obligations has been the subject of recent debate in light of guidance from the NLRB, so employers should pay particular attention to this issue when discussing investigations with legal counsel.

3. Potential retaliation liability is not limited to actions taken directly against the complaining party. A witness could potentially be retaliated against for his or her role in an investigation. Further, it is possible that actions taken against a witness could support a retaliation claim from the complaining party. Thus, it is important to bring third party witnesses under the “no retaliation” umbrella.

Such an acknowledgement form may not be right for every company or in every investigation. But the considerations raised in the bullet points above are present in most investigations, and employers not using pre-interview acknowledgements should discuss with counsel whether they might be beneficial in protecting them from liability arising from investigations.

(Part 1 of a 2-part series. Part 2 will cover pre-interview documentation for the complainant and the accused)