Think you have completed your investigation because you’ve interviewed your witnesses? Not so fast–there’s a lot more to do.
Attorney Walter Stella, a partner in the San Francisco-based law firm of Shook, Hardy & Bacon, LLP, talked about the pitfalls of investigations during a SHRM Employment Law and Legislative Conference in Washington, DC.
After the Interviews
Here’s what to do to finish off your investigation:
1. Analyze your investigation for completeness. Is there anyone or anything that you missed?
2. Evaluate the credibility of the witnesses. This is easier if the same person interviewed all the witnesses.
3. Reach a conclusion. This is the toughest part, says Stella. Be sure that your conclusion is made with regard to a policy violation, not a legal violation. Do not conclude, for example, that harassment occurred. Once you do that, opposing attorneys have their case made.
4. Take action if warranted. Your response should be consistent with your policies and with your actions in previous similar situations.
5. Follow up with the parties. If you decide to take disciplinary action, it is appropriate to let the alleged victim know that you have done so, but it is not necessarily appropriate to let him or her know exactly what action was taken.
6. Reiterate your policy concerning retaliation. Make sure the managers involved with the victim understand this clearly. Insist that they come to you before taking any negative job action.
7. Continue monitoring the situation. Tell the accuser that if it happens again, to be sure to report it. Check in with the person to verify.
8. Refer to your finding in future employment decisions. Many employers do an outstanding investigation, conclude it, and then forget it. Nothing bad happens to the accused except maybe for some initial discipline. In fact, the person gets a normal raise, a bonus, and a promotion.
Now it looks as though there was just a slap on the wrist–no serious consideration of the gravity of the offense. That’s going to come back to haunt you.
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Investigations are exacting and demanding. In fact, let’s face it–HR is never an easy job. And it’s especially difficult in a small department, where one or two people have to do it all, from investigations to succession planning to recruiting to training to recordkeeping to FMLA management. How can anyone possibly handle it?
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