Although most organizations are not particularly sophisticated in their investigation policies and procedures, says attorney Michael Soltis, unfortunately, juries have high expectations, especially for bigger organizations.
How good must misconduct investigations be? There is, of course, no exact answer, say Michael Soltis and Allison Bogosian, attorneys at the Stamford, Conn. offices of nationwide employment law firm Jackson Lewis. (Bogosian has since left the firm.)
Some investigations can be simple and some, says Soltis, can be days of testimony, still leaving us with no idea of exactly what took place.
Soltis and Bogosian presented guidelines for good investigations at a Workplace Law Symposium sponsored by the Connecticut Business and Industry Association.
Expect Little Sympathy from the Jury
Juries (and anyone who reviews complaints) expect to see sophisticated systems, well-organized and thorough investigations, and appropriate follow-through. If your investigation process appears to be bumbling or inadequate, expect little sympathy from the jury, warns Soltis.
Prepare Policies and Procedures Now
The need for an investigation is usually sudden, says Soltis, so get policies and procedures in place now so that you know who is going to do the investigation, who has to be notified, how the investigation is going to proceed, how the report and conclusions will be arrived at, who is going the get the results, and so on.
Then, when the need for an investigation presents itself, you will be ready to move smoothly into action, without making mistakes that can come back to haunt you.
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Prepare Yourself for Attempts to Discredit
As the investigator, you need personal preparation as well, says Soltis. During depositions and in court, the opposing attorney will try to undermine your testimony by questioning your expertise.
For example,
- Who made the decision to terminate? How was the decision arrived at?
- You knew she had XXX medical condition and you terminated her anyway?
- What schooling have you had in the Americans with Disabilities Act (ADA)? (Unfortunately, the more experienced you are, the less likely that the ADA was in existence when you were in school, quips Soltis.)
- What continuing ADA education have you received? (The typical answer is two seminars in 12 years, says Soltis.) “And that’s adequate for you to conclude that my client …. “
- How many seminars on investigations have you attended?
- How many investigations have you done? (The typical answer is four, says Soltis.) Again you’ll get the question, “You believe that’s adequate to make judgments about my client’s livelihood?”
Defining Scope and Purpose
Begin your investigation, Bogosian says, by defining its scope and purpose. In doing this, consider two factors:
- The apparent validity of the claim.
- The employer’s potential liability.
The scope should be tied clearly to the purpose, while providing sufficient latitude to adjust to newly-revealed information. Usually, the goals are:
- To obtain a full objective understanding of the facts.
- To prevent the investigation from becoming “external.”
- To keep productivity up and gossip down.
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Be Familiar with the Law
Next, says Bogosian, familiarize yourself with legal issues relating to your investigation.
First you have laws that relate to collecting, retaining, and disclosing information about employees.
Second, you have the substantive area of law applicable to the allegations of inappropriate conduct, such as ADA.
In tomorrow’s Advisor, the tricky issue of credibility determinations, and a unique training program that will help you avoid situations in which you have to investigate.