What did Ryan Lochte do? 8 tips for waterproof investigations

Despite the conclusion of the 2016 Summer Olympics, Ryan Lochte is still “under water” with questions still looming after Rio police reports that the American gold-medal Olympian fabricated a story about being robbed at gunpoint in Brazil. Lochte initially reported that he and three other U.S. swimmers—James Feigen, Jack Conger, and Gunnar Bentz—were robbed at gunpoint as they were returning from a party. 

Brazilian authorities reported a markedly different account: The American swimmers vandalized a gas station and then got into an altercation with security guards. Since the news broke, Lochte changed his tune a bit to the press and admitted that he exaggerated his initial story, but the International Olympic Committee set up a disciplinary commission to investigate Lochte and the three other U.S. swimmers. This commission will determine what consequences, if any, the swimmers will face.

Like any workplace investigation, the IOC will need to determine who should conduct the investigation, who will be questioned as part of the investigation, the commission will review whatever video and photographs of the incident exist and then it will make conclusions and determine the appropriate action to take, if any, following these conclusions.

What if Lochte was an employee who was alleged to have engaged in this conduct while on a business trip?  In the workplace, as a general rule, an employer has a legal duty to conduct a prompt, thorough, and unbiased investigation when it becomes aware of improper conduct. For example, if the employee was terminated without any investigation, the employer is exposed to a claim by that employee. If the conduct is ignored, and then occurs again, the employer is exposed to claims of negligent supervision. If an employee complains about harassment by another employee, federal and state anti-discrimination laws mandate a prompt, remedial, and unbiased investigation.

When done properly, workplace investigations and prompt remedial action can serve to defend against employment-related claims and preclude recovery. However, when done improperly (e.g., when disciplinary action is taken on the basis of a poorly conducted investigation, the evidence doesn’t justify the conclusions reached, or  there is a failure to take appropriate action following the investigation), there are significant risks of exposure. Because these investigations are tricky, here is a list of guidelines that employers should keep in mind:

1. Determine interim steps.  Depending upon the nature/gravity of the conduct, it may be suitable to place the accused on a paid administrative leave pending the outcome of the investigation.  It is important to reassure the employee being investigated that no conclusion of wrongdoing has been made, that the investigation will be unbiased and will conclude as promptly as possible.  The complaining party and the accused should be reminded of the organization’s policy against retaliation.
2. Choose an investigator.  The investigator must be impartial and must be well trained.  Who is best suited to conduct the investigation?   Is there someone at your organization who has the experience and the time to promptly and thoroughly investigate the issue?  Is that person too close to the accused or the complaining party or the incident itself that could create a perception of bias?  If so, perhaps referring the investigation to an outside investigator would be prudent.  Neither the accused nor the complaining party should have any role in the investigation and should not have any supervisory control over the investigator.
3. Review documents.  Review all relevant written policies as well as all documents that may be relevant to the incident/incidents that you are investigating.  Consider reviewing personnel files of the accused and the complaining party.
4. Plan the investigation. Prepare a checklist of all witnesses you plan to interview make sure to outline your questions beforehand.  While you want to plan, you will also need to be flexible enough to speak to others/ask questions not on the list, as the investigation unfolds.
5. Conduct witness interviews.  Interview the complaining party, the accused and every witness whose name was provided by the complaining party, the accused or if any other witness lists them as persons who witnessed the incident/incidents or could corroborate either party and who was present during all of the complained about conduct.  There may be a need to conduct additional interviews with witnesses already interviewed based upon information later discovered.  Questions should be open-ended (who, what, when, why, how, who was present, etc.) and the investigator should take note of body language of the witnesses.  The investigator should also request all relevant documents from witnesses during the course of the investigation.  The tone of the interviewer should be professional at all times.
6. Draw conclusions.  Conclusions will often require credibility determinations.  Credibility determinations will require consideration of the following:  Is the witness’ version of facts believable?  Does the witness seem to be telling the truth?  Does the person have any reason to lie?  Are there documents or other witnesses that support this witness’ version of the events?  Has the accused had a history of similar behavior in the past?  Investigation reports should include answers to each of these questions and indicate how the credibility determinations are derived.
7. Prepare the investigation report.  The report should include a list of documents reviewed, list of witnesses interviewed, the nature and scope of the investigation, a summary of the investigation, as well as conclusions and recommendations.  The report should specify how the conclusions were reached and why the recommendations are made.
8. Communicate findings to complaining party and accused.  In the event the investigator concludes that there was wrongdoing, then appropriate action should be taken and documented and the relationship should be further monitored.

Undoubtedly, we will not be spared any details of the findings of the Lochte investigation, and whether the investigation will result in ramifications for the 2020 Summer Olympics in Tokyo. “Thankfully,” his narcissism guarantees that, if we are not hearing about the incident in Rio, we will be hearing about his performance in this season’s Dancing With the Stars airing soon.

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  Robin Kallor
  Robin Kallor regularly advises and represents employers on a broad range of labor and employment matters involving discrimination, retaliation, Fair Labor Standards Act, National Labor Relations Act, breach of contract and any other matters that pertain to the employer-employee relationship in both the unionized and non-union settings.