August 20, 2018
Author: Priscilla Hapner
Organization: Law Office of Priscilla Hapner
I. General Principles
Internal investigations conducted by employers have long been a necessary part of conducting business in the United States. Investigations may be required to address threats to the employer’s financial resources or when required by law, such as to defend against sexual harassment complaints. Conducting an investigation can provide the employer with an honest belief defense to a discrimination or retaliation lawsuit or claim for punitive damages.
An employer is only liable if it discriminated against the employee on a protected basis (such as gender). It is not liable if it made the decision based on particularlized facts, even if the employer is later shown to have been mistaken or foolish. Horsley v. Burton, 2010-Ohio-6315 ¶¶ 51-52; Braithwaite v. Timken Co., 258 F.3d 488, 493- 94 (6th Cir. 2001). See also, Chen v. Dow Chemical Co., 580 F.34d 394, 401 (6th Cir. 2009) (“When an employer reasonably and honestly relies on particularized facts in making an employment decision, it is entitled to summary judgment on pretext even if its conclusion is later shown to be mistaken, foolish, trivial or baseless.”) (internal quotation omitted); Wylie v. Arnold Transp. Serv. Inc., 494 F.Supp.2d 717,
725-26 (S.D. Ohio 2006).
Conversely, failing to conduct any investigation, or conducting a sloppy or cursory investigation, can result in the loss of the honest belief, good faith and other defenses to an employer. Shazor v. Professional Transportation Management, Ltd., No. 13- 3253 (6th Cir. 2-19-14) (“The key inquiry in assessing whether an employer holds such an honest belief is whether the employer made a reasonably informed and considered decision before taking the complaint-of actions . . . One conversation did not establish sufficient particularized facts about the truth behind Plaintiff’s statements, let alone her motive.” Hollingsworth v. Time Warner Cable, 861 N.E.2d 580, 168 Ohio App. 3d 658, 2006-Ohio-4903 (employer’s “perfunctory” investigation which overlooked and failed to preserve critical documentary evidence constituted evidence of pretext and justified punitive damage award against employer in discrimination lawsuit).
Investigations may also be conducted in the following situations:
- Employee performance
- Employee misconduct
- Sexual Harassment
- Abuse of controlled substances
There are a number of laws that apply to workplace investigations. For instance, if an employer retains an outside consumer reporting agency to conduct a background investigation on a current employees (driving record, for instance), the employer would still need to comply with the Fair Credit Reporting Act and obtain a signed consent from the employee (if one was not already obtained before the employee was hired that explicitly covered post-hire investigations). Laws prohibiting certain invasions of privacy, constitutional rights, and defamation should be observed.
Most investigations will involve the following actions:
- Site Visits – viewing the location of the conduct
- Personal interviews with witnesses, who are generally employees
- Reviewing records and computer data (including emails)
In selecting whether to use an internal investigator (like a manager from another department or someone from Human Resources) or to hire an external investigator (such as a consultant or attorney), keep in mind whether the individual will be required to testify in any legal proceeding. An external investigator will appear to be less biased (although perhaps not as knowledgeable of the internal office politics and policies), but using your regular law firm could disqualify that firm from defending the company if it would be necessary to testify. Another option would be to retain an attorney who does not regularly represent the company. Using an attorney could also protect the confidentiality of any subsequent report (and legal advice). The Ohio Supreme Court has found that an investigation report prepared by a private law firm was exempt from Ohio’s public records laws because of the attorney-client privilege. State ex. Rel. Toledo Blade Co. v. Toledo-Lucas County Port Authority, 2009-Ohio- 1767.
In any event, there are a number of legal and practical considerations involved when conducting workplace investigations.
II. Steps to Take
A. Explaining Purpose and Conduct of Interview
It is generally advisable to advise the witness of a number of issues before you begin asking questions. First, you should introduce yourself and truthfully explain the purpose of the meeting. For instance, “we are looking into concerns that have been expressed about ______” or “we have reason to suspect that _____.” You do not always need to identify the target of the investigation or go into explicit detail. (It is usually a good idea to assure a witness that he or she is not the target of the investigation if they seem nervous or frightened).
While you might explain that you are investigating a theft, an accident or a fight, you might want to consider carefully whether to advise the witnesses that you are investigating sexual harassment or poor management so as not to influence the information given by the witness. The level of detail may also be influenced by whether the witness is an employee or client or vendor. Whatever explanation you give, ensure that it is truthful.
You should advise the witness that you will attempt to keep the information he or she provides as confidential as possible and would appreciate their respecting the confidentiality of the investigation process by not discussing the matter with coworkers afterwards. It is generally worth describing that discussing the matter may contaminate another witness’s testimony, make other employees uncomfortable and/or look as though the employee were attempting to shape someone else’s testimony. Under the current National Labor Relations Board, employers can no longer routinely require or advise employees to maintain the confidentiality of an investigation because employees have the right to solicit their co-workers for support in the investigation. If there is a special need to maintain confidentiality in a particular investigation, that concern should be documented before employees are advised to maintain confidentiality.
An investigator should not promise absolute confidentiality because the witness may provide critical information upon which the investigation hinges and because the issue could end up in litigation or an administrative proceeding.
If the witness (including the accused) is uncomfortable with proceeding, you should explain that a decision will be made based on the information you receive. If the information is incomplete because of the witness’s lack of cooperation, it could affect the decision made and action taken. If the witness is the accused or the accuser, an inference may be drawn based on his or her lack of cooperation.
Be prepared to explain why the witness has been selected for an interview. It may be that the person was identified or that his or her location is proximate to the events in question. You might also state that you are conducting the interview simply to be thorough. Be sensitive to the fact that the witness is concerned that he or she is the target of the investigation or that it is a “witch hunt.”
An investigator also needs to explain his or her role in the investigatory process. An investigator is to be objective and not draw conclusions prior to completing the investigation. You do not take sides and will remain neutral while gathering facts.
B. Location of the Interviews
It is generally advisable to conduct the interviews in a discreet location away from the workplace so that everyone is not aware of who is being interviewed for how long and in what order. Sometimes a nearby coffee shop will work as will an office on another floor or in another building.
C. Obtaining Written Statements
If there is time, it is always a good idea to ask witnesses to submit written statement of their version of the facts. These statements can be relatively short and make great exhibits if the witness includes all the relevant details, does not include inappropriate comments and stands by the document. Having written statements shows that the employer based its decision on the facts it gathered from witnesses and not on its own biased perceptions. However, if the witness is reluctantly cooperating with the investigation, he or she may refuse to include all of the relevant facts in the statement out of loyalty to a co-worker or fear of causing someone to lose his or her job, etc. In that case, the employer may be prevented from taking stronger action based on the facts it “knows” happened because of lukewarm witness statements. Accordingly, it can be a judgment call as to whether to request and/or require witnesses to submit statements. Generally, they will only be sought when the incident under investigation is relatively simple (such as an assault or simple altercation) rather than complex (like a sexual harassment investigation which can have multiple incidents over a period of time).
It is important to remember that an employer cannot refuse to conduct a workplace investigation simply because the complaining employee refuses to put his or her concerns in writing. Once the employer has knowledge – from any source, including a verbal report – the obligation exists to investigate the matter further.
D. Obtaining List of all Relevant Documents and Policies
It is important to have each witness identify any documentary evidence that would support his or her version of the facts so that his or her recollection can be supported. Each witness may be aware of the existence and/or location of different relevant evidence.
The investigator should attempt to locate this information and safeguard it from destruction in the ordinary course of business, from malfeasance or from negligence. Otherwise, the employer could face a separate lawsuit or court sanction for failing to preserve evidence.
E. Obtaining List of All Relevant Witnesses
It is strongly advisable to obtain as much relevant information about possible corroborating witnesses as possible in order to avoid a he said-she said problem. The more details of each version that can be corroborated, the less the investigator will have to rely on personal credibility of a witness to make a decision. However, it is also important to recognize group-think or “blood in the water” phenomenon when employees have discussed an issue so much among themselves, that they all share the same opinion of a person or issue without having personal experience or knowledge of it.
When asking for a list of witnesses, also try to obtain a summary of what information may be in the witness’s possession. It may not be possible or necessary to interview every possible witness, so you will want a framework to determine who the most critical witnesses are.
The fact that the accuser or accused cannot identify any corroborating witnesses may be relevant to the conclusion ultimately reached. However, merely because the witness lacks first hand knowledge of the event under investigation does not necessarily mean the witness is unimportant. For instance, it may be relevant in a sexual harassment context that the accuser had complained to others about the harassment, even if these witnesses never observed the harassment for themselves.
F. Separating Perception and Belief from Observation
In questioning witnesses, it is important to separate perception and belief from observed facts. Some witnesses will reach sincere conclusions that are not supported by the facts based on their perception of an event or personal bias. Perception includes not only whether the witness has first hand knowledge based on his or her senses (i.e., sight, hearing sound, touch, taste, etc.) , but also how he or she perceives the incident based on his or her personal history. For instance, one witness may hear a workplace disagreement and believe the supervisor was hostile because of being reprimanded previously, while another may believe the employee to be using an insubordinate tone because of prior negative experience with the employee or a prior positive experience with the supervisor. The more common issue is that a witness reaches a conclusion based on hearsay or gossip from other employees even though the employee never had first hand knowledge of the events.
The investigation should separate information that is based on first-hand information (i.e., eye witnesses) from second-hand or hearsay evidence (i.e., heard through the rumor mill or from co-workers).
G. Taking Breaks
Be prepared to take a break if an interview becomes too confrontational or emotional. It will take pressure off the witness and the give the investigator time to process the information and design follow-up questions. Always take a break if the witness requests it.
H. Communicating the Outcome
It is important to communicate the outcome of the investigation to the primary parties once the investigation has been completed and decisions made on actions to take. This would include, for instance, issuing disciplinary action to any employees found to have violated a rule, law or policy. It can also include issuing a copy of the investigation report, although this is rarely necessary. It can also include informing the investigation target that no disciplinary action is being taken, while also explaining – when appropriate – that a lack of proof is not the equivalent of innocence. Sometimes, it is sufficient to simply note in the employee’s personnel file that a complaint was made but insufficient evidence existed to substantiate it (or the evidence indicated that the complaint was baseless). While some employers chose to “make an example” of certain rule-breakers by publicizing their punishment as a deterrent to the workforce, this practice can create resentful employees and an incentive for the shamed employee to sue the employer for defamation and/or invasion of privacy depending on the circumstances. It can also lead employees to question lesser or harsher punishment when it is implemented in superficially similar situations and to hide similar infractions in order to protect their friends.
The complaining employee and/or victim should also be notified that the investigation has been completed and, without going into detail about another employee’s disciplinary record, that appropriate disciplinary action has been taken. If no disciplinary action is being taken, the employee should be so informed and given an explanation as to why. For instance, it may be that there was insufficient evidence to corroborate the allegations (he said-she said), or that other witnesses exonerated the employee, or that there was an innocent miscommunication, etc. Regardless of the outcome of the investigation, it is also important to remind the employee to bring any new issues to management attention if there is repeated misconduct or retaliation. The employer cannot act unless it is informed. Merely because this particular investigation was unable to substantiate a concern does not mean that a future investigation of a different issue will end the same way. Similarly, merely because this investigation may have resulted in disciplinary action does not mean that the misconduct will immediately stop. Employers have been found liable for tolerating a hostile work environment when they assured a complaining employee that her concerns had been addressed (when they had not) and the harassment continued even though she did not repeat her concerns to management about continuing harassment.
III. Steps to Avoid
A. Conducting Group Interviews
Inexperienced investigators may bring all relevant parties/witnesses into a room and conduct the investigation with all witnesses present. The advantage of this technique is that it is quick, transparent and puts a lot of pressure on the first person to speak. However, it is generally always a bad idea for a number of reasons. First, it destroys any chance of maintaining confidentiality. Second, while the first person to speak has pressure to be truthful, all remaining witnesses will feel peer pressure to give a version of facts that is consistent with the stories already given. Few employees will want to confront a co-worker with a different perspective. Third, it has the affect of contaminating the memories and perceptions of the witnesses with the memories, perceptions and version of prior witnesses so that they are unlikely to keep straight what information they observed from the actual incident and what information was filled in by others.
B. Contaminating Witnesses
Inexperienced investigators will often inadvertently contaminate witnesses by providing them with information about the incident that was learned from prior witnesses. Witnesses can also become contaminated by other witnesses who were interviewed earlier. As a result, it becomes almost impossible to later separate what that witness observed and perceived first-hand from what she learned from the investigator. There have been famous criminal and military trials where the accused was exonerated by showing how the sloppy investigator contaminated the witnesses by suggesting facts or perceptions during questioning.
In conducting the witness interviews, it is important to not reveal any information obtained from other witnesses until after exhausting the information volunteered by the witness. This can also have the affect of keeping the witness more “honest” from the uncertainty created as he or she attempts to guess how much the investigator already knows.
The investigator should also consider possible contamination when deciding on the order in which witnesses will be interviewed in order to minimize the possibility of contamination.
C. Making Promises or Threats
Investigators should never promise any benefits to a witness in order to gain his or her cooperation. Otherwise the impartiality of the investigation will be called into question, as well as the credibility of the information provided by the witness. Similarly, witnesses should not be threatened or retaliated against. On the contrary, witnesses should be assured that they will not suffer any retaliation for providing truthful information. Some “witnesses” have later claimed that they were threatened for not providing false information. Others have claimed retaliation for providing information which supported the complaining employee’s version of the facts.
If a witness is reluctant to cooperate with the investigation, explain to him or her that the outcome of the investigation is only as good as the information gathered. Without truthful, complete, relevant or reliable information, a poor outcome may result because of the witness withholding information. Most witnesses understand the logic of this.
D. Taking Safety Risks
If the witness poses a threat to the physical safety of the investigator, steps should be taken to conduct the interview in a safe location and in the presence of others. Do not hesitate to tell the witness to leave any weapons he typically carries at home before coming to the interview.
E. Taking Too Long to Start Investigation
To be effective, some investigations should begin quickly. For instance, waiting too long to conduct a post-accident investigation will result in destruction of the accident scene and the loss of critical evidence and the blending of memories. Sexual harassment investigations should begin within 10 days of the complaint.
IV. Steps to Consider
A. Recording the Interview
Tape recording the interview is likely to make witnesses less cooperative and will seem confrontational. They are much less likely to volunteer information while staring at a microphone. Surreptitious recording of the interview could violate some state’s wiretap laws (but not Ohio wiretap law) and could be considered an invasion of privacy.
Unlike written notes, the recording of the interviews will always be discoverable in any subsequent litigation.
The benefits of a recording, however, are that there can be no later dispute about what was asked and what information was conveyed. By the time a matter reaches litigation, a witness may believe that he or she said something that was never shared and will imply that the investigator was biased and left it out. A recording will support the investigator’s credibility.
If the investigator insists on tape recording the interview, then each interview should begin with a recitation of the date, time, place and names of participants, as well as verbal assent by each attendee to the recording.
B. Side Issues
It is common that other important issues will be raised by the parties or witnesses which are not relevant to the investigation at issue. Make a note of these and follow up with them at the end of the interview so that you can decide whether a separate investigation should be conducted of that issue.
For example, the target of the investigation may reveal misconduct by the complaining employee. A witnesses in a theft investigation may reveal that sexual harassment or drug use is also going on in the department. These issues are not directly relevant to the investigation being conducted, but are sufficiently serious to warrant a separate investigation.
C. Checklist/Template Forms
If you anticipate conducting several or many investigations each month, it would be worthwhile to have a template investigation note form to remind you to gather each specific piece of information from each witness. The template would contain, for instance:
- Date of interview
- Name and job title of witnesses
- Information imparted to the witness regarding confidentiality, retaliation, impartiality, purpose of the investigation, etc.
- Information relayed by the witness, including names of other potential witnesses, identification of documents, dates, etc.
D. Evidence of Criminal Misconduct
Occasionally, a workplace investigation may reveal evidence of criminal misconduct. Accordingly, the investigator should comply with applicable criminal laws. For instance, it is a crime to not report a felony under both Ohio and federal law. Pursuant to Ohio Revised Code § 2921.22, the failure is a fourth degree misdemeanor. However, the federal statute is more onerous: 18 U.S.C. § 4 Misprision of felony: Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
Witness Tampering: 18 U.S.C. § 1512(b)(1): is illegal to engage in misleading conduct towards another person with intent to influence the testimony of any person in an official proceeding (which need not be pending).
V. Types of Questions to Use
A. In the Beginning
In the beginning of the interview, the investigator should use open-ended, nonaccusatory, non-leading questions in order to get the witness to open up.
B. Establishing a Chronology
The next phase of the interview should focus on establishing a chronology for what happened. Establishing a chronology is critical both for determining what happened and for evaluating the credibility of the witnesses (both perception and judgment). For each block of time, the investigator should obtain details about the following issues:
• What happened?
• When did it happen?
• Where did it happen?
• How did it happen?
• Who else was there or nearby?
• Who said (or did) what? In what order?
• Why did this happen?
• Could this have been avoided?
• Are there any documents, notes or emails?
• Did you tell anyone about it? Who? What did you discuss? When?
• Who else may have information about this?
• Who else might have been standing or walking in the area?
• What might this person know?
• How would this person know that?
• Have you discuss this with that person?
C. Confirm or Refute Specific Allegations
Once the chronology has been established, ask more leading, probing and precise questions to confirm or refute specific allegations or assertions made by other witnesses or provided by other evidence. Do not disclose the source of the question if there is no need.
• What if someone said that Linus had been searching through Lucy’s desk when the confrontation started?
• Is it possible that Lucy had the flu when she slurred her speech and appeared hungover at the meeting?
• Is it possible that Lucy had not been properly trained?
• Is it possible to believe both what you have just told me and _____?
D. Follow Up on Hints or Vague Responses
If the witness vaguely hinted at an issue that did not fit into the investigator’s prior questioning, the investigator should still follow up on vague and ambiguous answers or hints and close any gaps in logic:
• You deny that Lucy ever harassed Charlie, but indicate that she may have harassed someone else. Who would that be? Shroeder? Anyone else?
• You indicate that Lucy’s conduct did not violate the workplace violence policy, but doesn’t it apply to all employees regardless of who they assault?
• You deny that Patty said anything sexist, but still believe that she was biased against men. Why?
Leading and focused questions are appropriate at this stage.
In concluding the interview, give the witness the opportunity to add any additional information. Summarize the information provided by the witness and give the witness contact information in case that he or she thinks of something later or believes that he or she is being retaliated against for cooperating with the investigation.
In some investigations, it may be appropriate to prepare a written summary and ask the witness to review and correct it in his or her own handwriting. This could be useful later in litigation if the witness attempts to contradict himself.
VI. Special Considerations for Interviewing the Accused, the Accuser and Disinterested Witnesses
A. Interviewing The Accuser
The first and last interview in any serious investigation should be the accuser. The first interview will be rather lengthy in order to obtain as many details and the chronology of the event. Because no judgment can be made about the accuser’s sincerity or perception at this stage, it is important to be thorough and interested in every aspect of his or her accusation. Whether the investigator appears genuinely interested in the allegations can make a huge difference in whether the accuser later accepts the results of the investigation and/or decides to pursue litigation.
If at all possible, the investigator should attempt to obtain a written statement of the allegations before the interview. This creates the benefit of being able to focus the interview (as well as the investigation) and ties the accuser to the original allegations if they later prove to be unfounded.
The tone of the interview should be as non-judgmental as possible. The investigator should be sympathetic, but should also remind the accuser if necessary that no judgments will be formed until the investigation is complete and the accused has had the opportunity to respond.
The investigator should be sensitive to the fact that the accuser will be particularly concerned with confidentiality and possible retaliation for making the allegation. The investigator should determine if the accuser has made prior complaints about the accused or anyone else and if the accuser has discussed the allegations within anyone else before this investigation. The accuser should also be questioned about any potential bias against the accused. (Did he or she recently get passed over for a promotion? Is he upset about his last salary increase? Was she recently transferred?)
Consideration should be given to visiting the sites of any relevant incidents. The investigator should explain the investigatory process and what the accused can expect in terms of duration and information that will be shared about the conclusions and recommendations.
The final interview of the investigation should also be with the accuser in order to give him or her the opportunity to clarify and/or rebut points raised by the accused and/or other witnesses. If the accuser begins to change his or her allegations at this point to better fit the evidence that has been gathered, that should be taken into account when evaluating credibility. The investigator should also confirm that the accused has not suffered any retaliation since the investigation began. Build trust and a rapport. Show concern. Take the issues seriously (or at least appear to until the conclusion of the investigation). No one is candid with an investigator who appears to have already made up his or her mind or demonstrates little sympathy.
B. Interviewing the Accused
The focus of this interview is to corroborate (and refute) as many of the allegations as possible, to obtain as much rebuttal information as possible, to obtain information about possible bias or motive to fabricate, and to explain why the conduct was reasonable under the circumstances. For instance, in a sexual harassment investigation, the accused may admit to leaving telephone messages and physical touching, but assert that they were “welcome” at the time until he broke off the relationship.
The accused should be told of the nature of the investigation and the possible ramifications. Although some accused employees will become defensive and combative, others will volunteer a lot of information in order to appear cooperative and innocent. Anger is a natural response and time should be given for the accused to regain his or her composure.
The investigator should be sensitive to the fact that the accused will be afraid of losing his or her job as well as damage to reputation. Assurances should be made that no conclusions will be reached until the investigation has been concluded and that it will be conducted as discreetly as possible. The accused will be care much about neutrality and impartiality.
The accused should also be warned about not retaliating against any witness, including the accuser. If retaliation occurs, it will lead to disciplinary action and be considered in evaluating credibility.
A second interview is sometimes necessary to follow up on information provided by witnesses.
VII. Drafting the Report of the Investigation and Interviews
You're often told to \"document\" everything. But, are you preparing to successfully defend your case, or are you preparing evidence that your opponent will use against you? Remember, that every document that is prepared may eventually be shown to a jury. As a result, it is important to create effective documentation to support both the quality of the investigation and the correctness of its conclusions. This way, you can avoid \"information backlash.\"
To protect the confidentiality of the information supplied by the witnesses (and to comply with certain provisions of the Fair Credit Reporting Act), an investigator should be sensitive about identifying the sources of specific information by name while writing the report. While the investigator will want to list the names of who was interviewed (in order to demonstrate the thoroughness of the investigation), it is not necessary to summarize the information provided by each witness by name as part of the report. It may not always be necessary to even identify the name of the accuser.
Public sector employers may want to summarize each interview without necessarily identifying the witness’s name in the summary. The summaries will be public records once the investigation has been completed.
The report should be strictly factual, limited to job-related issues and not contain unsupported conclusions. If a witness speculated or relied on a rumor to support a conclusion, that fact should be noted in discussing the credibility of the information provided. The negative business impact of the misconduct should also be identified.
If the results of the investigation are vague or inconclusive, that should be stated as a basis for mitigating the action taken. Drastic action should not be taken in response to inconclusive evidence.
Drafts of the investigative report should not be maintained. Summaries or copies of the interview notes should be maintained for possible litigation.
Investigation reports – particularly reports that are released to the public with a press release– can be the subject of defamation claims. Mehta v. Ohio Univ., 2011-Ohio- 3484 (regarding university plagiarism scandal). While there are qualified privileges that may protect statements made in a report, those privileges can be lost through abuse. Therefore, it is important to fairly report the nature of the allegations and the response in order to avoid losing any privilege.