The Six Ways Attorneys Will Attack Your Investigation

You must proactively prepare to defend your investigation and the decisions you make along the way against the following types of attack, Pritikin says.

• The “Neutrality” Attack
• The “Time” Attack
• The “Fair &Thorough” Attack
• The “Taint Free” Attack
• The “Retaliation” Attack
• The “Burden to Remedy” Attack

Pritikin, an investigator and seminar leader for Katz Consulting & Associates in Santa Monica California, offered her suggestions at the SHRM Employment Law and Legislative Conference, held recently in Washington, DC.

The Neutrality Attack:

‘The investigation was not conducted by neutral, trained investigator.’

Neutrality can be undermined when the person conducting the investigation:

• Knows either party too well
• Has repeatedly investigated the parties
• Shows a pattern for siding with the employer
• Has disciplined the parties for unrelated claims
• Is subject to job performance evaluations from the parties
• Is privy to private information unrelated to the claim
• Is being “managed” by counsel or management

Pritikin suggests that you should consider bringing in an outside Investigator when:

• No one in-house has been trained to conduct investigations
• The person investigated is a high ranking executive or a member of HR
• The complainant asks for a neutral investigator
• You’re opening Pandora’s Box (use neutral attorney/investigator)

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The Time Attack:

‘The investigation was not conducted “promptly.’

Starting an investigation within one day is ideal, and within one week is crucial, says Pritikin.

• The investigation can be underdetermined when there are unnecessary, unreasonable or unexplained delays. HR on vacation is not an excuse.
• Delays create a hardship on the parties. Justify and explain delays.
• Explain significant delays between “Legal Notice” and the onset of an investigation.
• Minimize hardships.
• Suspension of the accused should be with pay.
• Consider having more than one or two people trained to conduct an investigation.

Be sure, says Pritikin, that:

• You have policies that explain to employees how to make a complaint.
• You have intake procedures for complaints and forms available for making complaints. 
• Managers are trained about what to do/say when an employee complains to them.

The Fair & Thorough Attack:

‘The investigation was not fair to both sides.’

The investigation should be thorough with questions asked of parties and witnesses, giving the accused an opportunity to respond to additional information/allegations that surface, says Pritikin.

• Don’t promise “confidentiality” to parties.
• Don’t prejudge beforehand. It is usually not “what you expect.”
• Justify or explain why, if one party was not interviewed.
• The witness list should be “organic” and derived from investigatory interviews.
• Interview witnesses on both sides and ask parties about witnesses that can support or corroborate their statements.
• Justify or explain why any witnesses were not interviewed/ interviewed by phone.
• If “everyone” was interviewed, justify or explain why.
• Support credibility determinations.
• Questions should be open ended, not leading. Interviewer must ask “difficult” Qs.
• Evidence that is not available or that was destroyed needs to be explained.
• If “scope” of the investigation is limited, explain and justify questions or information left out for this reason.

The investigation should be well documented. If it is not, it looks like the company may be hiding something. Remember, the investigation is most likely a “defense” in litigation. In this case, privilege is waived as to all statements and evidence presented to the investigator. Nothing is confidential in this case, including the investigation conversations, evidence and conclusions—even if the investigator is an attorney.

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The Taint Free Attack

‘The investigation was not protected from contamination.’

The investigation can be “tainted” if:

• The parties and witnesses are not reminded by the investigator to refrain from discussing the investigation with anyone other than the investigator
• The investigation was conducted in an open, non-private setting
• If the investigator discussed the investigation with anyone other than counsel, or specifically delineated individuals
• If the parties discussed the events with any witnesses before they were interviewed
• If the rumor mill or gossip has not been contained
• If the several parties colluded before bringing a claim
• Evidence was purposely destroyed or overwritten

In tomorrow’s Advisor, more attacks and an introduction to a unique collection of policies, all ready for you to customize or use as is.

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