Show You Care: 3 Steps to a Better Investigation Process

Retail workers think company investigations are often deficient, suggests new data

Kathleen Smith, vice president of asset protection with Albertsons, advocates a people-focused approach to loss prevention. Speaking on a keynote panel at the 2019 NRF Protect conference, she said that retail workers need to hear the message—frequently—that their company cares about them.

Kathleen Smith

“You need to promote your values,” said Smith. “You need to make them feel that goals of your program are ‘because we care about you.’”

There are profound implications to whether workers think an employer cares, including giving shape to how workers react if they face an incident at work—something that new data shows is commonplace.

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Law firm Foot Anstey partnered with polling firm Survation to understand how frequently UK retail workers face unwanted behaviors at work. The survey, of more than 1,000 store associates, found:

  • 11 percent have experienced “inappropriate touching of a sexual nature” in their current role,
  • More than one in four have experienced physically aggressive or violent behavior, and
  • 26 percent say they’ve experienced unwanted touching or hugging.

Perhaps even more troubling than the frequency of incidents is what retail workers said is their employers’ attitude toward those incidents.

  • 24 percent think their current employer does not care about protecting them from inappropriate behavior, and
  • 41 percent of employees who raised a complaint said they were dissatisfied with the outcome.
Patrick Howarth

Often, employee discontent results from the fact that individuals who investigate complaints aren’t very good investigators, according to Patrick Howarth, head of retail at Foot Anstey. “Many managers are promoted on the basis of technical abilities and are not equipped with the leadership skills to deal with harassment—or even recognize it when they see it. That’s no one’s fault. The important thing is to change it,” he said.

What Can LP Do?
In April, we addressed the thorny intricacies of investigating employee complaints of sexual harassment. But what about investigations more broadly? Employment law experts, speaking at recent national security conferences, suggested three steps to reduce the likelihood that retail workers will feel that you ignored or mismanaged their complaints.

1. Always investigate to the appropriate standard of proof for the situation. It’s critical, say experts, for similar offenses and incidents to undergo similar investigations. They should all be equally rigorous. For example, a retailer needs to investigate a sexual harassment charge against a senior store manager at least as rigorously as a sexual harassment claim against a cashier.

With that caveat in mind, however, investigations should reflect what and who you’re investigating to determine the appropriate standard of proof for which your investigation should aim. For example, fraud investigators don’t need as high a standard of proof in a case where a retailer is thinking of breaking ties with a vendor because of suspicion of fraud as they do when the suspect thief is a store employee you’re planning to terminate.

In managing an appropriate investigative response for a case at hand, below are questions that can help a retailer decide, when do I have enough evidence?

• Who is the alleged perpetrator (an outsider or an insider)?
• Are there any contractual requirements?
• Are there any regulatory requirements?
• Are there any legal requirements?
• Is this likely to go to litigation?
• Is there a continuing threat?
• How much time is available?
• How much time would be needed to continue?
• What resources are needed to continue?
• What are the risks of continuing versus the risk of stopping?

2. Don’t wait for an investigation’s conclusion before taking reasonable security measures; take necessary immediate action. As critical as carrying an investigation to the right level is remembering to act in the meantime. In monitoring court cases, for example, particularly “hostile workplace” claims, we routinely find that companies win or lose cases because of action (or inaction) during the time that investigations are being conducted.

In one case, for example, a female employee found pornography on a shared computer in her work area and complained. The company launched an investigation, including interviewing 30 employees, while the employee filed a Title VII lawsuit against the company for maintaining a hostile work environment. In deciding the case in favor of the employer, the court cited evidence the employer’s appropriate remedial action: immediately removing the computer; within days, checking all free-standing and networked computers for pornographic materials; immediately offering to move the employee to another work area where she could do her job; and taking steps to reinforce the company’s sexual harassment policy, including sending a letter explaining its policy and a copy of the employee handbook to all employees. Taking those actions immediately while the investigation was conducted allowed the company to beat the lawsuit.

3. Audit the training and competency levels of the people you’re relying on to conduct the investigation. Investigations are only as good as the investigators, and, as Howarth noted, store managers often do not have the necessary skills to investigate the complaints they receive.

What qualifications should you look for? What elements must the training of internal investigators cover? Some best practices, suggested by the American Bar Association’s National Institute on Sexual Harassment, are below:

Before assigning an investigator, ask:

  • Does the individual have adequate knowledge of the legal issues that may arise?
  • Is the individual familiar enough with our organization’s history, current policies, culture, and employees?
  • Does the investigator possess the necessary personal qualities to lead the investigation? Including analytical or critical thinking ability, impartiality, sensitivity, and fairness?

Has the investigator been adequately trained in:

  • Planning and preparation? Including identifying the investigation’s true purpose; assembling and instructing an appropriate investigation team; identifying potential conflicts; and identifying and assembling appropriate documentary information sources, such as expense reports, telephone records, and so on.
  • Conducting interviews? Including providing appropriate explanation and warnings to witnesses; asking open-ended, non-leading questions; persistent pursuit of specific, accurate, and complete information; following up hints and contradictions; closing logical gaps; appropriately consistent technique; and appropriate recording technique.
  • Evaluation skills? Including evaluating the credibility of witnesses; identifying inconsistencies, contradictions, and gaps in information; identifying potentially corroborative and contradictory information; weighing evidence; understanding and applying standards of evidence and burden of proof; drawing inferences; identifying alternatives and consequences; and weighing and choosing solutions.

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