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In this featured episode of California Employment News, Lizbeth (Beth) West and Meagan Bainbridge present part two of the Workplace Investigation Series, discussing best practices for collecting information during a workplace investigation.
Watch this episode on the Weintraub YouTube channel and find the first installment of this series here.
Meagan: Hello, everyone. Thank you for joining us for this installment of the California Employment News, an informative video resource offered by the Labor and Employment Group at Weintraub Tobin.
My name is Megan Bainbridge, and I’m a shareholder in the Labor and Employment Group. And today, I’m joined by my partner, Beth West. Today’s episode is part two of a four-part series discussing effective and defensible workplace investigations. In the first part of the series, Today, we discussed what steps to take when an employer first learns of a complaint or has knowledge of some alleged misconduct in the workplace. Today, in part two, we’re going to discuss best practices for gathering information. Beth, why don’t you start us off and tell us what investigator should do first to ensure they gather all relevant facts about the allegations.
Beth: Thanks, Megan. Well, in order to conduct an effective investigation, the investigator must gather all relevant facts about the allegation. There are some planning The following steps that you as the investigator can take in order to stay focused on the issues within the scope of the investigation and avoid what is called scope creep, which we’ll discuss later. First, create a plan before you begin interviewing witnesses. If there is a written complaint, you can use that as a starting place, a roadmap or blueprint of the issues that define the scope of what’s going to be investigated. This can also help identify which witnesses to talk to first and what if any, may need to be reviewed prior to interviewing witnesses. If there’s no written complaint, discuss the verbal complaint or concerns that have been raised with the client or stakeholder, and prepare a scope outline or memo to ensure that the scope of the investigation is clear. Determine your initial witness list, but don’t be wed to it. As you speak to witnesses or gather information, other witnesses may be identified that you’ll have to interview. Determine what documents need to be obtained and you’re going to obtain those.
You may be able to request some of the documents from the client or stakeholder, for example, an org chart or policies or some other company document. However, some documents may come directly from the witnesses that you interview. You should also carefully consider whether you need to view certain documents. For example, is it necessary to do a full review of the complainant or respondent’s personnel file? The allegations and scope of the investigation will help determine this, but investigators should not make it a standard practice to review personnel files and other documents that aren’t apparently relevant. Doing so could potentially influence the investigator in a way that’s not appropriate and could result in bias. Create an outline of the issues, the topics, or the questions for your witness interviews. Again, it’s not a script and you shouldn’t be wed to it. Instead, it should contain the overall topics to address with the witnesses based on the allegations within the scope. Remember to always consider scope, what it is you’re trying to investigate, what information you’re trying to obtain. It’s important to check in on scope at the planning stage and throughout the investigation and be aware of what’s called scope creep.
Scope creep happens when you start focusing on issues and investigating allegations that are not within the scope of the investigation. Finally, consider where the witness interviews take place. It should be in a private location where discussions can take place out of the presence of others and where witnesses feel comfortable. It could be in person. Matter of fact, in-person interviews are very effective, but it It could also be via Zoom or even over the telephone. Megan, once these preliminary steps have been taken, what should the investigator do next?
Meagan: Start talking to the witnesses. I mean, most investigators are probably going to start with the complainant. That’s the person making the complaint. Then based on that information, whether the individual provides names of other individuals who have knowledge, that at that point, the investigator will then likely seek out those third-party witnesses. That have been named by the complainant. Following those third-party witnesses, those third-party witnesses, the investigator will then generally reach out to the respondent to get his or her response to those allegations that are being investigated. When you’re discussing or when you’re interviewing the third party witnesses, remember, these could include former employees. They could include individuals who are not employed by the company. If that occurs, you’ll want to make sure you’re having discussions with the employer to determine whether or not those individuals will be reached out to. But just remember that the mere fact that the person is not a current employee of the employer is not instructive. Those are still individuals with relevant information that may need to be interviewed. As I said earlier, you’re usually going to conclude the investigation by speaking to the respondent. That respondent may give you additional people to speak to, to give their side of the story, and at that point, you would then speak to those individuals.
When speaking to the respondent, it’s imperative that the investigator be prepared to ask the hard questions. That is this true type of question. For an investigation to be defensible, the respondent must be given notice of all allegations being made against him or her and provided an opportunity to respond to those allegations. When speaking to individuals, whether it’s the respondent, the complainant, or some third party individual, the investigator will likely use the same questioning techniques. Specifically, questions should start broadly. Then seek to find the details from there that are needed to fill in the story. Investigator should be very careful to avoid putting words into the witness’s mouth and instead get the information from the witness directly. Further, at the beginning of all interviews, all witnesses should be given the same admonitions. This will largely replicate what was provided in the notice letter, namely that the investigator will direct all witnesses to tell the truth, inform the witnesses of the company’s no retaliation policy, and ask employees to keep the interview and the contents thereof confidential. Beth, What do investigators need to consider next?
Beth: Well, finally, the investigator has to determine how these witness interviews are going to be documented or preserved. And there are different methods, and different investigators have different preferences. One method is for the investigator to take notes as he or she is interviewing the witness, either electronically or handwritten. Another method is to prepare witness statements, which you can then have the witness review and sign as an accurate account of what they’ve shared with you. And then also some investigators record witness interviews, provided the witness has provided his or her consent to the recording. But there’s one thing to remember, however, that the recording will not only record what the witness says, but also what you, the investigator, say. So this means there will be a record of how well you ask the question, whether you put words in the witness’s mouth, as Megan referred to, whether you ask compound questions, or worse yet, whether you failed to ask a relevant question. Well, that’s it for today, Megan. What’s up for our next installment of Effective and Defensible Investigations?
Meagan: Well, in part three of this series, we’re going to be discussing best practices for making factual findings. You can continue to follow along by subscribing to our YouTube channel or by finding us on our website at thelelawblog.Com. We’ll see you next time.