Take care with your investigations, says investigator and trainer DeDe Church, or they may do more harm than good. Here are some things you need to know about doing your investigations, she says.
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Church (DeDe Church & Associates, LLC, www.dedechurch.com) offered her advice at the Employers Counsel Network Convention held recently in Austin, Texas. The Employers Counsel Network is comprised of the practicing attorneys from all 50 states who write BLR’s state-based Employment Law Letters.
Don’t Lose Your Investigation
The court can preclude you from telling the jury about an investigation if it finds fault with the investigation, says Church. Castelluccio v. IBM (d. ct. conn jan. 2014)
In Castelluccio, there was an“open-door” investigation—“Anyone who wants to talk about this can”—but the company didn’t finish the investigation.
From the case: “The plaintiff’s bar is growing increasingly sophisticated in its strategic efforts to preclude employers from introducing into evidence these types of investigations.”
Don’t Exercise Too Much Control
It’s not your responsibility to oversee and direct the outside investigator so that you are in the best position to defend the employer. Koss v. Palmer Water Department (U.S.D.C. Mass. Oct 2013)
The Court in the Koss case: All privilege was waived because the attorney exercised “significant control and influence” over the investigation. It’s OK to ask for status updates and oral and written reports, but this case went way beyond that, with the lawyer instructing the investigator on what to find. If there are competent HR persons, it’s good to use them as an intermediary between the investigator and the attorney, Church says.
Some attorneys want to do the investigation to claim privilege on some of the things found, but then you can’t turn around and use only part of the investigation, Church adds.
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More Likely than Not
The legal burden of proof in internal investigations is “more likely than not.” (An internal investigation isn’t a legal proceeding, so there isn’t a burden of proof, but if there were, it would be this, Church clarifies.)
For example, Church says, one female employee says a male employee “patted her on her butt.” There are no witnesses, but the investigation reveals two other women who separately say he had done the same thing in the same way to them, which makes it more likely than not that it was a pattern and he did it.
Also, pay attention to the signals you personally get as an investigator. In this example, Church experienced a “creepy” handshake that involved the accused rubbing her arm when he shook her hand.
Investigation Results Should Never Be “I Don’t Know”
If “I don’t know” is your final conclusion, it means that you don’t have the evidence to think it happened, says Church.
For example, Harry was hired as the VP of HR 6 months ago. One of first things he did on the job was put together a sexual harassment policy. Now he comes to you and insists that Kimmy be fired. The next day, Kimmy comes to you and says, “Harry gave me a very long, uncomfortable hug in his office with the door closed.” She also complains that “Harry called me hot” and “I know five other women who say Harry is creepy.”
When an employee complains about a supervisor only after the supervisor has recommended her termination, should you discount her complaint a little? No. Keep an open mind. The average time it takes someone who is the target of bullying to come forward is 22 months (Workplace Bullying Institute).
First, you must make a strategy call depending on who the client is and who Kimmy and Harry are in real life. You might want to talk to Kimmy more to see what she says the other women would say to decide how you want to proceed, which could include a full investigation, including interviews of all six women and Harry.
Tell Harry out of deference that this has come up and that you are going to investigate so he knows what’s up and can decide how to handle it. Maybe he needs to remove himself from talking to the women in question while the investigation is going on.
Here is what the investigator finds: Three other women report that Harry hugged them tightly for an extended period. Several witnesses remember Harry saying, “So what’s hot around here other than Kimmy?” (wink, wink). Harry denies hugging Kimmy and “doesn’t recall” the “hot” comment.
The antiharassment policy prohibits making suggestive comments about an individual’s body and unwanted physical contact. (By the way, Church says, if your investigator doesn’t ask for copies of your policy, you don’t have the right investigator.)
Now, the investigator should give you those facts, and you make the decision. It’s not up to the investigator to find there was a violation of policy.
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Tips for a Written Report of an Investigation
- It’s a critical document: Write as if the jury is reading over your shoulder.
- Do not use adjectives or adverbs.
- Make no reference to yourself in the first person. (Don’t say, “I noticed Sally didn’t make eye contact.” Say, “Sally doesn’t make eye contact.”)
- Avoid the word “evidence.”
- Offer conclusions but no recommendations.
- Don’t ask for changes/additions/updates to the investigator’s report through edits. Always ask for an addendum.
Remember: The Standard Is Not “Perfection”
The issue isn’t the truth or falsity of the allegation but “whether the employer reasonably believed the employee’s allegation and acted on it in good faith.” Jackson v. Cal-Western Pkg Corp (5th Cir. 2010).
In tomorrow’s Advisor, Church’s discussion points for retaining an outside investigator, plus we introduce you to BLR’s practical Wage and Hour Self-Audit Guide.