If you carry out misconduct investigations, how good should they be? As good as the jury thinks they should be, say today’s experts. And that better be pretty good, because juries expect a lot from HR.
Most organizations are not particularly sophisticated in their investigation policies and procedures, say attorneys Michael Soltis and Allison Bogosian, of the Stamford, Connecticut, offices of the nationwide employment law firm Jackson Lewis. Unfortunately, juries have high expectations, especially of bigger companies. The attorneys’ comments originally appeared in our sister publication, the HR Manager’s Legal Reporter.
Juries Have High Expectations
Juries (and other regulatory officials) expect sophisticated systems, well-organized and thorough investigations, and appropriate follow-through. And the larger the organization, the greater the expectation. To this end, our experts have supplied these investigation tips:
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Interviewing Witnesses
At the beginning, limit your investigation to persons you think will yield the most information. The first group of witnesses may well provide information that requires additional digging. At the outset of the interview, inform witnesses that:
- You represent the employer.
- The witness may retain separate counsel, but unless the investigation leads to criminal charges, there is no right for the counsel to participate actively in the investigation.
- The witness has a responsibility to cooperate.
- The employer has a document preservation policy that the witness must adhere to.
- The investigation may have a negative impact on the witness or other employees.
- The employee will not be retaliated against because of participation in the investigation.
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As you begin witness interviews, keep these tips in mind:
- Be honest about the purpose of the interview, but remember that you are not the one there to provide information.
- Keep questions as general as possible while still obtaining useful information.
- Use open-ended questions including the five Ws: who, what, when, where, and witness.
- Do not tell the witness what others have said.
- Be careful not to disclose information in asking your questions.
- Do not intimidate the witness.
- Ask the witness to identify others who may have valuable information.
- Never ensure witness confidentiality—information is shared on a need-to-know basis and may also be subpoenaed by opposing council or the authorities.
- Bring along someone else to serve as investigator’s witness and explain this person’s presence to the interviewee.
- Document witness interviews. If the interview is conducted under the guidance of counsel, indicate this on all documentation.
- Be thorough and fact-specific. Don’t state opinions or conclusions not based on fact.
- Don’t make legal conclusions; they can be used against you in court at a later date. Simply conclude that the person engaged in conduct prohibited by your policy.
Prepare for Attempts to Discredit You
And one more advisory: Be prepared for opposing counsel to try to undermine your credibility in court by questioning both your experience and expertise. Your own lawyer should help you prepare for this legal onslaught.
In the next Advisor, what to do about liars from Mike Soltis, and three additional investigator tasks from the famous “HR Red Book®,” What to Do About Personnel Problems in [Your State].