In part one of this article, we addressed some of the preliminary historical basis for investigating sexual harassment claims and internal investigations. We also talked about organizing the investigation and creating a general strategy for those who need to be interviewed. In part two, we will discuss some of the mechanics of organizing the investigation.
While investigations often differ in the number of potential witnesses and the order in which they need to be interviewed, it is essential to open the interviews with the person making the complaint. This first interview with the complainant will provide the basis for the objectionable actions and may assist the investigator with determining the order of the other interviews and locating the supporting documentation or evidence.
It may be that the first interview is not with the actual victim but with someone whom the victim approached shortly after the event and who felt compelled to report the alleged actions to management. Since the complainant in this scenario is not the victim but merely the reporter, the investigator must identify the victim and persuade that person to cooperate in the investigation. If the victim does not want to cooperate in the investigation, the organization must determine whether to proceed to investigate independent of the victim. In some situations, the company may determine an independent basis to substantiate events in the allegation’s investigation, and the investigation should be continued.
In either case, if the complaint is deemed worthy of continued investigation, an investigator should attempt to substantiate the facts independently and be appropriately skeptical of any information that appears biased or made on the basis of assumptions. Information that is biased or based on assumptions may ultimately be determined to be truthful and relevant, but it is only useful when it can be substantiated through other means.
In any workplace investigation, there is a need for confidentiality. Unfortunately, the National Labor Relations Board (NLRB) ruled in Banner Health that the company could not require confidentiality of the investigation from its employees as a blanket rule. The NLRB decision said that confidentially could be requested from those involved in situations where there was a danger of evidence being altered or destroyed or in situations where there was potential for injury to those involved. In light of this recent ruling, the investigator should seek a decision from the company’s general counsel or outside labor lawyers before asking those interviewed to keep the investigation confidential. If there is a decision to require confidentiality of those involved in the investigation, a clear set of reasons should be outlined to support the company’s decision to do so.
The victim and potential witnesses will undoubtedly be curious about the investigation and what others may have said during their interviews. It is the investigator’s job to obtain information, not to share it with others who don’t have a need to know. Sharing information may taint future interviews since witnesses may make assumptions or allow bias to creep into their memories. In short, the statements of other witnesses should not be shared, nor should there be an in-depth discussion of evidence for or against the alleged harasser.
The investigation should be carried out promptly and completed as soon as possible. It is generally advisable to apprise the victim and, if appropriate, the complainant that the investigation is ongoing and work is still being conducted. There is no need to discuss the direction or information uncovered at this point, but it reinforces the fact that the investigation is proceeding and taken seriously. Not updating the victim or complainant could lead to civil suits because they didn’t believe the company was pursuing their allegations.
In addition, timeliness is important to clear innocent people whose reputations could be sullied and to protect employees from any further misconduct if the allegations are substantiated. In the event of a civil suit alleging discrimination, retaliation, or harassment, the timeliness and thoroughness of an investigation can mitigate some of the organization’s liability.
Certainly, the most thorough way of documenting what went on during the interview and the information obtained would be through recording the conversation. This can be valuable since others can hear firsthand what the victim said and the emotions at play as the story was told. However, many organizations have a blanket policy not to record interviews or allow those being interviewed to record the conversation. Again, the National Labor Relations Board recently decided that an employee can record conversations (Whole Foods Market, Inc. and United Food and Commercial Workers, Local 919 and Workers Organizing Committee of Chicago). If the subject of an interview wants to record, the investigator should consult with the organization’s general counsel, outside labor lawyer, or at a minimum with their supervisor before rejecting the request.
If a decision were made to allow the associate to record a conversation, we would encourage the investigator also to record the conversation so that any tampering with the recording would be readily evident. With the sophistication and availability of editing tools, conversations can be deleted or altered even by those who might be less sophisticated in operating a computer.
At a minimum, the investigator should keep handwritten notes of the conversation including the location in which it was conducted and the times it began and ended. In addition, any requests to use the restroom, obtain water, or anything else should be documented, and the time that they occurred should be noted.
The investigator’s notes should also reflect any specific statements made by the subject in quotation marks to reflect the exact words that were used. On occasion it may be useful for the investigator to have the subject of the conversation initial areas of the investigator’s notes to indicate correctness even before having the individual write a statement containing the relevant information.
Protect Identity and Evidence
The investigator should protect the identity of witnesses who cooperate in the investigation. These witnesses should also be alerted that if they face any retaliation for cooperating in the investigation, they should contact the investigator immediately.
Any evidence recovered from cooperating witnesses or other subjects should be properly logged into an evidence file. Original documents should always be obtained and, if necessary, a copy retained by the owner. Any evidence should be stored in a secure location and safeguarded from tampering. This evidence and any witness statements should be kept confidential and limited to only those who have a need to know.
Preparing for the Interview
Once the investigator has obtained a complete list of those to be interviewed and their locations and completed the background investigation, it’s time to prepare for the actual interviews.
Since the investigator is interviewing employees who serve an important business function within the organization, they must make sure the department is adequately staffed while the associate sits for the interview. This may require that the individual’s supervisor be alerted of the intention to interview the employee. This can be done either by the investigator or someone who knows the general purpose of the investigation. Depending on the investigative plan, the supervisor may be told the reason for the conversation but should not be made aware of the direction of the investigation or who is being interviewed. The supervisor should also be made aware of the potential for retaliation or other reactions that might affect the associate.
Depending on the investigative plan, the associate might be interviewed at an on-site location or asked to meet the investigator off-site. The decision to do either may affect the spread of rumors or prompt retaliation. Whichever location is chosen, it should provide privacy and limit any embarrassment for the person being interviewed. There is nothing more uncomfortable than having coworkers walking past the conversation looking into the room through glass doors or walls.
The investigator should also have a suitable witness present to listen to the conversation and take notes. If the investigator plans to record the encounter, the use of a witness becomes more of an option. Like any traditional internal investigation, the employee’s supervisor should be alerted to the conversation and provide any assistance necessary to the investigator. Many organizations partner with the human resource manager either to witness the conversation or to support the investigator in arranging locations and times for the interviews.
In the next part of this series, we will address the actual interview process of the victim, witness, and alleged harasser. These can be especially difficult investigations because there may be no witness to the event other than the two parties. These two parties may tell amazingly different stories about what occurred in the incident. We will look to the structure of the interview and some of the telltale signs of a truthful story to help in judging the veracity of the parties in part three of this series.