Bill O’Reilly’s reign as a Fox News favorite came to an abrupt end amid a series of sexual harassment allegations against him. After the most recent allegations, Fox News hired large law firm Paul Weiss to conduct its internal investigation.
Workplace investigations are tough, and if your organization can’t afford (or simply does not want) to hire a legal giant to handle the internal investigation, there are some key steps to ensure the investigation is fair, impartial, and efficient.
Before we start, you should know there are no clear, one-size-fits-all approach to investigations—each probe must be tailored to the size, structure, and resources of your organization. Even so, organizations often fail to conduct a sufficient investigation by delaying the process, failing to take the complaint seriously, focusing on perception rather than the facts, failing to follow through, and neglecting to document its efforts. By following the tips in this article, hopefully you can avoid these common pitfalls.
First, it’s important to know what kinds of complaints legally require an investigation or when conducting an investigation would provide a defense against later claims:
- Civil rights and nondiscrimination/harassment statutes (Title VII, etc.);
- Statutes with whistleblower provisions (OSHA, SOX, Dodd-Frank, etc.);
- Workplace violence situations;
- Potential breaches of security, confidentiality, trade secrets, etc. (UTSA, CFAA);
- Public policy provisions; and
- Violations of company policy.
If an employee of your company says, “I need to talk to you…” there are some important best practices:
- Ask the person to summarize the issue.
- Ask yourself if you are the correct person to speak with the employee about the issue. If you are, then continue the conversation, making sure to document the individual’s concerns. If you are not the correct person, call the appropriate person right away and set up a time for the reporter to meet with the appropriate person.
- If you are the person to take the employee’s initial concern, remember that you are not the employee’s friend or confidant—you are an extension of the organization, and information you learn may impute knowledge on the organization.
- Be sure to emphasize the organization’s open-door policy and its policy against unlawful retaliation.
- Actively listen to the facts of the complaint. Remember, at the end of the day who, what, when, and where are necessary components to a proper workplace investigation. Be sure to take notes. Summarize the facts as told to you and once completed, go back and have the individual read what you’ve written for correctness. If possible, have the person draft a statement and sign and date it.
- If you need to, ask clarifying questions, but don’t second-guess or question the individual’s recollection of events.
- Finally, at the end of the conversation, thank the employee for coming forward, and state that HR will look into the issue further and determine the need and scope of further investigation.
I’ve listened to the complainant’s concerns, now what? After the initial conversation it’s time to develop an investigation strategy.
- Consider the need for immediate preliminary action or “pending investigation.” Consider whether the employee or accused will be on some leave of absence or scheduled time off, which will allow time to conduct a thorough investigation. Also, consider temporarily transferring or reassigning employees.
- Identify the need for an investigation. Was there a formal internal complaint or grievance? A charge, inquiry, or audit by an administrative agency? If so, these are examples of the types of complaints that companies should take seriously and immediately launch an investigation.
- Determine the goals of the investigation. Determine whether there are claims of illegal activity. Was company policy violated? If the alleged behavior continues, will it affect the company’s morale or result in productivity decline? Is the goal to show compliance with the law? Having a clear set of goals for the investigation will help direct you in determining who to speak with and what documents to collect.
- Assess the potential disadvantages. Consider whether the cost, time, and resources are worth conducting the investigation. Will the investigation disrupt your organization’s morale or productivity? Will the investigation yield negative publicity?
- Select the appropriate investigator. Make sure to select an investigator at the appropriate level given the severity of the allegations. Is the investigator credible? Is she insulated enough from the actors and allegations that she will be able to maintain confidentiality? Does the investigator have knowledge of your organization’s business, policies, procedures, and applicable legal issues?
- Identify and interview witnesses. Start by identifying those that must be interviewed, i.e. the accused, anyone the complainant has identified as a confidant, and any witnesses to the claims. Give special consideration to the order in which to conduct the interviews, and what happens if/when the allegations are made public. Consider conducting interviews in a private location that will not disturb the normal operations of the business. Be sure to allot for enough time between interviews, so as to prevent interviewee overlap. For every interviewee, including the complainant and the accused, affirm that the company has not yet made any determination as to the claims.
- Identify and gather documents. Collect any notes the complainant made. This may include a journal or calendar of important events. Identify the rules, policies, and procedures implicated. Consider whether to involve IT’s assistance with preserving e-mail, computer hard drives, access cards, and phone logs.
- Prepare an investigation roadmap. As you interview witnesses and identify important documents, create a timeline of the known facts and allegations. When interviewing witnesses, determine whether to conduct them in person or by telephone. Also, prepare an outline of questions. Remember the importance of developing who, what, when, and where.
- Consider confidentiality and security. Determine whether it’s vital to the conversation to tell the witnesses what the allegations are. If you do share the nature of the allegations, determine early how much you’re going to tell.
- Anticipate potential detours, red herrings. Prepare to be surprised.
The thoroughness of your internal investigation matters–not only because it demonstrates that claims against your organization are taken seriously, but because people forget the specifics (and they lie!). Having a well-developed investigation strategy and following our simple, but effective, best practices can help prevent investigation blunders.
Rachel Kelly is a Senior Associate in FordHarrison’s Dallas office. Rachel can be reached at firstname.lastname@example.org or 214-256-4702.