Conducting Internal Investigations Of Discrimination And Harassment - Part II

Saturday, January 1, 2005 - 00:00

Part I of this article appears in the December 2004 issue and Part III appear in the February 2005 issue of The Metropolitan Corporate Counsel and will focus on the investigation report, remedial action and special issues implicated by the Sarbanes-Oxley Act.

Planning the Investigation

Before beginning the interviews, the interviewer should prepare a preliminary list of potential interviewees. This should be a flexible list, with names being added and subtracted as the investigation progresses. Generally, the complainant is interviewed first, and then the accused and witnesses to key events are interviewed in whatever order is appropriate under the circumstances. Other possible witnesses include individuals in the same work group, authors of relevant documents, supervisors and individuals whom the complainant or accused has asked you to interview. Limiting interviews to those with relevant knowledge will: (1) help you stay on track with the issues raised; (2) ensure effective use of time and resources; (3) avoid disclosure of facts unrelated to the complaint; and (4) lead you more clearly to a conclusion.

Review of documentary evidence should include personnel policies and procedures manuals, benefit books, security guidelines, ethics policies, collective bargaining agreements, personnel files of the complainant and the accused, relevant correspondence (including emails), documents from prior investigations, prior complaints by the complainant or against the accused. and any relevant notes, time cards, logs, expense reports, calendars or diaries.

Conducting The Interviews

Before each interview, prepare questions to clarify (1) the issues to be explored; (2) the facts to be verified; (3) the identification of documents the witness authored or has knowledge of; (4) the relationship between the complainant and the accused; and (5) any reasons the witness may have to be biased either for or against the complainant or the accused. Ask questions about when and where the relevant incident happened. Did similar incidents happen before? If anyone was present, what did they observe?

Ask questions regarding motivation, such as why the interviewees think this happened and how they feel about it. Ask them for names of all relevant witnesses. Whom has the complainant discussed the incidents with and what was the substance of those conversations? If other employees have similar concerns, who are they? Questions should be asked about the work history of the accused, and any relevant policies or rules should be identified.

As the interview begins, put the interviewee at ease by covering:

  • What is being investigated;

  • The interviewee's role in the investigation;

  • How the interviewee's information will be used;

  • The degree to which the interviewees' information will be able to be kept in confidence;

  • The company's duty to investigate claims;

  • The status of the investigation. stressing that no conclusions will be made until all of the facts are collected, evaluated and analyzed;

  • The interviewee's strict duty to keep information from the investigation confidential; and

  • Assurance of no retaliation against the interviewee for participating in the investigation; tell the interviewee to call the investigator immediately if retaliation is even suspected.

To protect the integrity of the investigation, explain the importance of providing accurate, truthful and complete information. Emphasize the seriousness of the investigation, and explain that failing to cooperate or discussing the investigation with others can be the basis for disciplinary action. Confirm that the witness is giving first-hand information and not hearsay by asking if the witness has personal knowledge of the incident. If it becomes clear that the employee does not have direct knowledge, ask where the witness heard the information.

If the witness asks questions about the case (that is. how the investigation is being handled or whether the allegations are true), try to give "generic" answers like "we're in the preliminary stages," or "we are gathering information at this time" and not to provide specific information about the case.

Tape recording an investigatory interview is discouraged. The presence of a recorder is likely to inhibit the interviewee's disclosure of information. Moreover, if litigation ensues. a tape recording is often discoverable as an exact record of the interview and will not be considered attorney work product.

When assessing the witness's credibility, consider that the following types of witnesses may have special motivations:

  • Reluctant witnesses who are uncomfortable giving information because they "do not want to get someone else in trouble."

  • Limelight witnesses who feel empowered by having information that you want.

  • Ax-to-grind witnesses who view the interview as an opportunity to retaliate against the accused or the complainant.

Try to develop a rapport with the interviewee before you ask difficult questions. Avoid multi-part questions, and break up complex questions. Force the witness to commit to a story or a chronology of events. Probe any discrepancies if the witness's statement does not coincide with other testimony or if the statement does not comport with common sense.

Ask the witness if anyone else should be interviewed. Before concluding the interview, tell the witness to call you if he or she remembers any other events, or wants to speak to you for any reason. Give the witness your business card. After you conclude the interview, consider if there are any accommodations that seem appropriate (that is, time off or away from the office).

When interviewing the complainant, ask questions related to motivation, such as whether the complainant is angry with the accused for any reason unrelated to the incident. Explore performance issues by reviewing the complainant's file for the presence of any conflicts. Tell the complainant that the investigation will be concluded as soon as possible and that you will inform him or her of the conclusion.

When interviewing the accused, explain that a complaint has been made against him or her with a generalized explanation of the issue. Do not initially tell the accused who made the complaint or who participated in the investigation. Ask the accused for a detailed account of the incident. Emphasize the importance of providing you with any information that will help you to get to the bottom of the issue.

If the accused refuses to cooperate, caution him or her about the consequences of such a refusal (for example, a negative inference may be drawn and he or she may be subject to disciplinary action). Tell the accused that the conclusion of the investigation will be based on information gathered from all sources.

Be careful not to convey the impression that you have prejudged the accused. Be businesslike and persistent if the accused reacts with anger and hostility toward the complainant (or transfers his or her anger toward you). Emphasize to the accused that you are not taking sides and that no judgments will be made about the complaint until the investigation is completed.

Avoid leading, confrontational questions like "Isn't it true that you asked Sally out last week?" that suggest a conclusion about the investigation has been reached. If other questionable behavior on the part of the accused becomes evident, follow up. Do not ignore such information.

Try to give the accused a general time frame within which you expect the investigation to be completed, and tell the accused that you will inform him or her of the result as soon as possible. This will relieve some of the anxiety the accused may feel with respect to the probable outcome.

Emphasize to the accused that the company will not tolerate any retaliation or tampering with witnesses. Make it clear that any retaliation or tampering will result in immediate termination.

A standard "close" to an interview (similar to the opening statement at the beginning of the interview) should include:

  • Asking the interviewee if there is anyone else who should be interviewed.

  • Instructing he interviewee that it is normal to forget things from time to time and to remember them later. Tell the interviewee that if he or she remembers any additional information after the interview. he or she should contact you.

  • Reinforcing the confidentiality of the investigation.

  • Explaining (in general terms) what will happen from this point going forward.

In assessing the interviewee's credibility, consider what the interviewee's demeanor was like in light of normal behavior (i.e., was the interviewee nervous, uncomfortable, uneasy, argumentative, defensive, angry, or hostile?) Was the interviewee forthcoming or did you have to pry information? What if anything did the interviewee admit or deny? Was the interviewee's story logical? Did it make chronological sense? Did the interviewee's statement conflict with any written information collected? Do any documents, writings, diaries or calendars substantiate the interviewee's story?

Documenting The Investigation

Keeping an investigation log will help to document that the investigation was performed promptly and with due diligence. Interview notes should contain:

  • The date, time, and location the interview took place;

  • The identity of all parties present during the interview;

  • The length of the interview; and

  • The source of the information obtained during the interview.

Human Resources notes are typically produced in discovery in an agency investigation, arbitration or litigation. Even notes to counsel or internal memos involving counsel could be subject to discovery in connection with the assertion of an affirmative defense.

E-mails are also discoverable. Resist the tendency to be casual when documenting the investigation by e-mail. Be very careful about recording opinions (vs. facts). Written opinions may be appropriate, but only after careful consideration.

All notes from the investigation (including those on the computer) should be maintained in a confidential and secure manner. All information pertaining to an investsigation should be disseminated internally only on a "need-to-know" basis. Mark all written documents, including notes, "Confidential" and place them in a separate investigation file to which access is strictly limited. Even after an investigation is completed, the employer generally should refrain from informing other employees of the reasons why a particular employee was investigated or disciplined (or not disciplined).

Kevin B. Leblang and Robert N. Holtzman, Partners at Kramer Levin Naftalis & Frankel LLP, can be contacted at kleblang@kramerlevin.com and rholtzman@kramerlevin.com respectively.

Please e-mail the authors at kleblang@kramerlevin.com or rholtzman@kramerlevin.com with questions about this article.