AWI JOURNAL VOLUME 9 | NUMBER 4 | DECEMBER 2018 T HE O FFICIAL PUB LICA TION OF THE A S S O CI A T I O N O F W O R K P L A CE I NV E S TI G A T O R S
A VIEW FROM CANADA
The Impact of Workplace Bullying By Jason Walker and Miranda Mae Phillips
Workplace bullying is a serious issue, one that can have long-term negative systemic and individual impacts, and the target of workplace bullying may be exposed to increasingly harsh forms of aggression, incivility, and social exclusion., Workplace investigators face an ever-increasing need to respond to situations of suspected bullying and harassment in an objective, fact-based way to determine if bullying has in fact occurred. For organizations, workplace bullying is known to lower work productivity and engagement; contribute to a loss of job satisfaction, increased sick time and absenteeism, and higher employee turnover; and expose the company to increased legal risk.3 At the individual level, workplace bullying has been attributed to severe adverse long-term outcomes including, but not limited to, mental health disorders such as anxiety and depression, post-traumatic stress disorder, and, in some cases, suicide.4 In order to be effective, workplace investigators should be aware of these impacts. Investigations of alleged workplace bullying are often complex, emotional, and challenging. It can be difficult to draw evidence-based decisions. However, it is clear that the impact on a target’s mental health and well-being must be an integral part of the decision-making framework.
The Extent of Bullying
Bullies in the workplace are common to almost all organizations, across cultures and industries. Whether overt or covert, actions by bullies are undertaken to intimidate and harass, which affects the well-being of the impacted individual (who is often referred to as the target). The U.S. Workplace Bullying Survey (2003) reported that most targets (54 percent) reported that the bullying occurred both overtly and in front of others and involved such actions as name calling, making derogatory or harmful remarks towards the
individual, questioning competence, and teasing. Only 32 percent said bullying occurred behind closed doors and 10 percent reported that bullying happened in an office with the door kept open so others could hear. These findings indicate that in some workplaces bullying is part of the organizational culture to such a degree that it often happens out in the open; however, it also occurs in private. In the United States, studies consistently show that the rates of workplace bullying are between 10 and 20 percent; the first responder population (police, fire, ambulance/emergency medical services) reveals even higher rates of bullying, 40 to 60 percent, which is an incredibly high and alarming figure.5
What Is Workplace Bullying?
Workplace bullying is a kind of interpersonal mistreatment that is more severe than simple incivility. It is a complex and deliberate constellation of actions that are harmful when directed at an individual (or individuals) and may create an oppressive work environment.6 Research into workplace bullying has grown significantly over the past 25 years, and it shows the prevalence and outcomes related to the phenomenon are severe and significant.
Workplace bullying was first defined in the research, and later the courts, through the investigation of the mistreatment of bank employees. The term “workplace bullying” is described in various ways including harassment, incivility, sexual misconduct, emotional abuse, emotional or psychological terror, and victimization. The most commonly used definition of workplace bullying in the academic literature comes from the work of Ståle continued on page 4
President’s Message
THE AWI JOURNAL Susan Woolley Editor
Chuleenan Svetvilas Managing Editor
Published quarterly by the Association of Workplace Investigators, Inc. 1000 Westgate Drive, Suite 252 St. Paul, MN 55114 USA 844.422.2294 www.awi.org awijournal@awi.org The mission of the Association of Workplace Investigators is to promote and enhance the quality of impartial workplace investigations. All articles are Copyright 2018 by Association of Workplace Investigators, Inc., unless otherwise specified. All rights are reserved. Articles may not be republished in any manner without the express written permission of the copyright holder. Republication requests may be sent to awijournal@awi.org. The opinions expressed in this publication are solely the opinions of the authors. They are not the opinions of the Association of Workplace Investigators, Inc. If you are interested in writing for the AWI
Journal, please send an abstract describing the topic you will be covering to awijournal@awi.org. Our articles focus on the many different aspects of workplace investigations, including how the law applies to the work of investigators, practical matters, similarities and differences between workplace investigations and other fields of endeavor, developments and trends in the law and profession, and book reviews. Proposal deadlines: February 15 for Issue 2, April 17 for Issue 3.
The confirmation hearings for now-Justice Brett Kavanaugh were a landmark moment in American life, and even more so for workplace investigation. Whatever your views on Justice Kavanaugh, watching the public debate and hearings was a surreal experience for workplace investigators. All at once, the entire country was talking about the “inside baseball” of our profession: credibility assessments, he said/ she said, corroboration, and even scope of investigation. Scope of investigation?! That is really getting into the details of what we do. A short aside on he said/she said: Recently my colleague Ruth Jones pointed out to me how inherently gender-biased that phrase is. We only use it in situations that involve allegations of sexual misconduct between men and women. Nowhere else. Let’s say I get mugged and a man steals my wallet. When he gets arrested a few weeks later, I pick him out of a lineup. If he denies robbing me, the police don’t say, “Sorry, Mr. Rohman. This is a he said/he said case; we can’t prosecute him.” In fact, police and society have processes and procedures for these situations, processes that suddenly get upended when the allegations are about sex. In the wake of #MeToo and the Kavanaugh hearings, it has become even clearer how important our work is. There are no Senate hearings for women who feel they have been harassed, or employees convinced they have been falsely accused. Government regulators like the EEOC, which handles such complaints in the U.S., are completely overwhelmed and can get to only a fraction of the cases they have. So it turns to us and if you are getting the AWI Journal, you are involved, doing the hard work of helping workers and employers find the truth. We know how hard this work is. We know the gray area cases that can go either way; we have sat across the table from people who have suffered daily and persistent mistreatment, sometimes for years; and we have sat across the table from people who feel wrongly accused and are terrified they will lose their livelihoods or careers. The work is challenging professionally and emotionally. But if the last 12 months have taught us anything, it is that this work matters to people; it makes a difference in people’s lives. When done poorly, it can make matters worse, sometimes much worse. But when done well, by skilled and properly trained investigators, we can help find some of the truth, and that truth matters. It can provide some modicum of justice. It can provide relief from difficult situations at work. Simply put, when our work is done well, it can make our society a better place for everyone. Keith Rohman President of the Board of Directors rohman@piila.com
Letters to the editor are welcome; email awijournal@awi.org. Nothing contained in this publication constitutes legal advice. ISSN 2328-515X (print) ISSN 2328-5168 (online)
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Letter From the Editor Dear AWI Member and Friends, Another year is upon us! It promises to be full of surprises and challenges in our ever-evolving world of workplace investigations. As many of you know, one of our goals at the Journal is to provide information beyond the traditional parameters of law or human resources to enrich our understanding of workplace investigations. To further that goal, our first article on workplace bullying comes from two psychologists, Dr. Jason Walker, who hails from Canada, and Dr. Miranda Mae Phillips, who is based in Texas. The authors discuss some of the recent academic research on bullying—including the effects on employees and some of the patterns seen in workplaces of who bullies and who is bullied. This information could provide additional avenues of inquiry in workplace investigations. It will certainly help investigators be more informed and compassionate when dealing with this increasingly visible area of our practice.
One of our goals at the Journal is to provide information beyond the traditional parameters of law or human resources to enrich our understanding of workplace investigations. On a lighter note, Nora Quinn has written a “how to” guide for employers hiring an outside investigator. “How to Treat an Investigator” advises employers on what an investigator might need to do a more efficient job, and it also gives investigators ideas about what they should be asking for to help things go smoothly. Snacks, anyone? A new year is a great time for a refresher on some basics, and that is just what John Matejkovic and Margaret Matejkovic provide in their article “Practice Pointers.” Whether you are just getting into this field or have been around the block more times than you can count, there is something in this article for you. It reminded me to look at the AWI Guidelines regularly, just to keep them fresh in my mind. One of the great things about AWI is that we have this great big bunch of colleagues and friends—some of whom we already know and some we have yet to meet. In 2019, I hope all of us have the opportunity to connect with new and old friends through AWI. And I can’t wait to see you! Susan Woolley Editor, AWI Journal awijournal@awi.org
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EDITORIAL BOARD Susan M. Woolley, Editor* William D. Bishop Jr. Ann Boss Gabrielle Handler Marks Lynn D. Lieber Jennifer A. MacKenzie Margaret E. Matejkovic Jacques Ntonme Nora Quinn Debra L. Reilly Judith A. Rosenberg Kathleen Sage Robyn Sembenini BOARD OF DIRECTORS Keith Rohman, President* Karen Kramer, Vice President* Eli Makus, Treasurer* Monica Jeffrey, Secretary* Sue Ann Van Dermyden, Past President* Terri Abad Levenfeld* Britt-Marie K. Cole-Johnson* Jeremy Eaves Elizabeth W. Gramigna Monica Jeffrey* Emily Kaufer Reuben Mjaanes Cara Panebianco* Sarah Rey Elizabeth Rita* Debra Schroeder *SUSTAINING MEMBERS Evelyn Bailey Ian J. Bondsmith Nancy Bornn Carl A. Botterud Linda G. Burwell Zaneta Butscher Seidel Barbara Dalton Leslie Ellis Donna R. Evans Mark Flynn Ann Fromholz Kathy M. Gandara Nikki Hall Susan K. Hatmaker Debra Hinshaw Vierra Aviva Kamm Peter G. Land Lynn D. Lieber Deborah M. Maddux Marilou Mirkovich Julie Moore Lynn M. Morgenroth Trish Murphy Diana Nehro Amy Oppenheimer Geralynn Patellaro Don Phin Michelle Regalia McGrath Christina Ro-Connolly Michael A. Robbins Daniel W. Rowley Caroline Schuyler S. Brett Sutton Vida Thomas Alezah Trigueros Kadambari Wade Allison West Lizbeth West Sarah Worley Julie Yanow
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The Impact of Workplace Bullying continued from page 1 Einarsen and colleagues who define bullying as behaviors that are offensive, assaultive, harassing, and result in unfavorable outcomes for victims.7 In many regions of Canada, various governing sources define workplace harassment and prescribe how it must be investigated. Workplace harassment encompasses bullying, although the term “bullying” is not generally used. This ranges from case law to organizational policy to legislation and it is important that the investigator research and understand the legal framework associated with each jurisdiction. In general, most jurisdictions ensure that the rights and responsibilities of employers and workers include prevention and intervention regarding issues of workplace bullying in the context of occupational health and safety. Most definitions of workplace bullying include inappropriate conduct or comments by a person directed at a worker that the person knew or reasonably should have known would be unwelcome by the worker (e.g., by causing humiliation or intimidation) but exclude any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace. Oftentimes individuals who are accused of or engage in bullying may state that their intent was not to humiliate, intimidate, or otherwise cause harm. However, bullying behavior must be assessed objectively whatever the respondent’s intent may or may not have been. That being said, there may be situations in which the respondent’s behavior violates other organizational policies (e.g., the code of conduct) even where the behavior at issue does not meet the legal threshold of “workplace harassment.” There are multiple examples of behavior that could lead to a finding of workplace bullying and harassment and may include the following: • • • • • • •
Insults; Verbal aggression; Name calling; Sabotaging work; Spreading malicious gossip or creating rumors; Physical threats or threats of physical harm (e.g., violence); Hazing or other initiation practices that are harmful or offensive; • Personal attacks against an individual’s personal or private life or lifestyle choice; and • Aggressive or threatening gestures.
What Makes a Bully?
Theories guiding research on workplace bullying are limited. Although it is not the investigator’s job to determine how or why any individual develops in a certain way, it is helpful to under4
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stand the theory behind the phenomenon of bullying. People become bullies often because of self-esteem issues, personality problems, and anger-management difficulties.8 Bullies often torment those they believe do not fit into their “ideal group” because of their appearance, behavior, race, or religion; the emergence of a perceived threat to their career; or because bullies may think the target identifies as LGBTQ. During the investigative process, when considering the characteristics of bullying behavior in general populations, males typically present higher rates of having the personality traits linked to being a perpetrator. This is not to say females do not participate in bullying behavior, but simply that on balance men tend to display higher rates of this behavior. Other research has shown that both males and females who possess personality traits associated with bullying have the related characteristics of Machiavellianism, narcissism, and psychoticism.9 Often, perpetrators will engage in employment choices that draw them to a higher level of freedom and stronger hierarchical structures that tend to protect them and allow them to bully. There is no defined profile that reveals how a bully may choose an organization to work in or a target to bully. However, more often than not, bullies tend to hold positions of power. Bullying more frequently occurs where the organizational structure allows for a vulnerable individual to work in a subordinate position to someone who is prone to bullying, and where the individual cannot easily defend him- or herself or exit the situation. Gender and other power imbalances are important factors for investigators to be aware of. Studies of large-scale organizations show that, on average, 11 percent of employees identify as having experienced bullying and that females are typically bullied or sexually harassed more often than men. However, the emotional implications (such as sleep disorders, depression, anxiety, suicide, distress, sexual dysfunction) are equally distributed between men and women.10 Meaning, although women typically identify at higher rates than men as targets of bullying, the physical and psychological consequences across genders are equally severe.
The Need to Examine and Document
A great deal of research shows significant and severe physical health implications for targets of workplace bullying. A correlation exists between increased experiences of workplace bullying and adverse health outcomes, including cardiovascular issues, high blood pressure, skin conditions, cerebral vascular issues, fatigue, headaches, muscle/neck pain, and other ailments, including psychological distress.11 Witness reports of such symptoms are relevant to bullying claims and investigators should follow up on them.
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With the consent of the involved party, investigators might compare health-related records against the timeline of bullying as well as disclosures to the health care provider that may support or refute an allegation of harassment. Of course, in doing so, investigators must be aware of privacy issues and legal protections regarding access to and use of health-related information.
Considerations for Investigators
The impact of bullying on mental health is a serious and sensitive issue. Investigators are often faced with the task of working with targets who display mental health symptoms that could be related to bullying. Targets of bullying may display diagnosable mental health disorders such as anxiety, depression, post-traumatic stress disorder, nightmares, sleep disorders, or adjustment disorder.12, 13
When assessing the complaint of bullying, the investigator should consider who is involved in the events giving rise to the complaint, including current and former employees who may have relevant evidence to submit. It is important to consider whether the matter may have a criminal component that requires involvement of law enforcement.
It is important, however, to keep in mind that investigators are generally not mental health professionals and should avoid making findings or taking other actions that go beyond their professional expertise.
Legal requirements often drive workplace bullying investigations. The employer might or might not seek advice from the investigator regarding its obligations under human rights law, workplace safety law, and/or criminal law. Some, but not all, attorney investigators will also recommend appropriate discipline if the complaint is substantiated.
The Effect of Workplace Bullying on Organizational Outcomes When evaluating the effect of workplace bullying on organizational outcomes, bullying behaviors are a strong predictor of low job satisfaction and decreased physical and mental well-being. Investigators should be aware that targets of bullying are often deemed “low performers” and that constructive dismissal or performance management may also be at play.14 Constructive dismissal would be an issue if the employer were aware of the bullying or ought to have been aware and failed to take effective action to address the bullying. However, it is also possible that the complainant may interpret performance management as “bullying” when in reality the actions of the employer are lawful and appropriate. Studies indicate that targets of bullying show up to 52 percent of their time as “unproductive.” Instead of doing their work, they are forced to spend time and energy defending themselves, seeking out support from others, and thinking about the impact that the perpetrator’s behavior is having on their career; they also acknowledge decreased job satisfaction and increased sick time absence, which is costly to the organization’s bottom line.15 For those who engage in workplace bullying, research consistently shows that the detrimental effects of perpetrator behavior on their targets and co-workers can impact corporate culture in very negative ways. Overall, when bullying is taking place in the work environment, ongoing exposure leads to an atmosphere of increased hostility, rudeness, and social marginalization systemwide. Investigators should be aware of the downstream impact on the organization as a whole that perpetrator behavior can cause.
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When conducting investigations related to workplace bullying, the investigator must approach each file in a fair, objective manner focusing on the evidence. The investigator should be aware of any applicable policy or law that would make the employer responsible for failure to adequately address claims of bullying.
The investigator might be asked to consult about interim steps to take pending the outcome of the investigation, such as reassigning employees or placing an employee on administrative leave. There can be consequences to the employer for these actions, and typically an employer will consult with its own legal counsel before proceeding with such actions. The investigator should be aware that cumulative trauma related to bullying presents in many ways. At times, bullies may make unreasonable or punitive requests of the target over many years.
Conclusions
Workplace bullying has severe consequences for both individuals and organizations. In general, the more workplace bullying occurs in an organization, the more detrimental the impact. Essential issues related to employee health and safety continue to be identified, with grave and negative implications for those who are the targets of bullying. Workplace investigators play a crucial role in the identification and remediation of bullying behavior.
Jason Walker, PsyD, PhD, works in First Nation communities and is known for his work as an expert in the assessment and investigation of workplace bullying and sexual harassment. Dr. Walker earned an honorable BA in psychology from McMaster University, an MSW (clinical) from the University of Toronto, his PhD in psychology from Northcentral University, and a clinical PsyD from California Southern Univer-
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sity. Dr. Walker is the director of clinical programs and services for the Inter Tribal Health Authority in British Columbia. Miranda Mae Phillips, PhD, specializes in health and educational psychology. She graduated from Texas A&M University in College Station, Texas, with a BS in psychology, earned her MEd in counseling from Lamar University in Beaumont, Texas, and earned her PhD in psychology, with a specialization in health psychology, from Northcentral University. Dr. Phillips is dean of students and academic success at Lamar Institute of Technology in Beaumont, Texas. Morten Birkeland Nielsen & Ståle Einarsen, Outcomes of Exposure to Workplace Bullying: A Meta-analytic Review, 26 Work & Stress 1–24 (2012), available at http://www.tandfonline.com/doi/abs/10.1080/02678373.2012.73470 9 (last visited Sep 5, 2016). 2. Jason M. Walker, A Quantitative Study of the Prevalence and Impact of Workplace Bullying Amongst First Responders, Proquest (2017). 3. Walker, supra note 2. 4. Walker, supra note 2. 5. Fidelindo A. Lim & Ilya Bernstein, Civility and workplace bullying: Resonance of nightingale’s persona and current best practices, 49 Nursing Forum (2014) 1.
Teodora Chirilă & Ticu Constantin, Understanding Workplace Bullying Phenomenon through its Concepts: A Literature Review, 84 Procedia - Social and Behavioral Sciences 1175–79 (2013), available at https://www.sciencedirect. com/science/article/pii/S1877042813017965 (last visited Dec 20, 2018). 7. Ståle Einarsen et al., Bullying and Emotional Abuse in the Workplace: International Perspectives in Research and Practice (2003) 8. Chirilă and Constantin, supra note 6. 9. Holly M. Baughman et al., Relationships Between Bullying Behaviours and the Dark Triad: A Study with Adults, 52 Personality and Individual Differences 571–75 (2012), available at https://www.sciencedirect.com/science/article/pii/ S0191886911005423 (last visited Apr 19, 2018). 10. Randy A Sansone & Lori A Sansone, Workplace Bullying: A Tale of Adverse Consequences., 12 Innovations in Clinical Neuroscience 32–37 (2015), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4382139/ (last visited Dec. 20, 2018). 11. Morten Birkeland Nielsen et al., Workplace Bullying and Subsequent Health Problems., 134 Tidsskrift for den Norske laegeforening : tidsskrift for praktisk medicin, ny raekke 1233–8 (2014), available at http://www.ncbi.nlm.nih. gov/pubmed/24989201 (last visited Mar 8, 2017). 12. Walker, supra note 2. 13. Nielsen, supra note 11 14. Gabriele Giorgi et al., Detrimental Effects of Workplace Bullying: Impediment of Self-management Competence via Psychological Distress, 7 Frontiers in Psychology 60 (2016) 15. J. E. Bartlett & M. E. Bartlett, Workplace Bullying: An Integrative Literature Review, 13 Advances in Developing Hum. Resources 69–84 (2011) 6.
How to Treat an Investigator By Nora Quinn
It is 9:30 a.m. on Monday. You are in-house counsel, or the director of human resources for the company where you work. You have just read a complaint from an employee that raises potentially serious issues. You are responsible for hiring a third-party independent investigator. You know what you want. Someone smart, ethical, with good common sense, superior writing skills, and experience testifying in court. Maybe with an attractive hourly rate.
You know that an investigator who meets your needs will be in high demand. Your chances of getting such an investigator into your office on your time schedule are much better if you have previously developed good working relationships with several investigators by treating them with respect, getting them what they need to do their work, and then stepping back to let them do the work you hired them to do.
You need someone to start this afternoon if possible, which probably will not be possible. But at least by Wednesday, Thursday at the latest. You need the complaining party to know that you are taking the complaint very seriously and not using delay as a tactic.
How does an employer become the client everyone wants to work with? The short answer is: by paying attention to basics. Understand that in the beginning the investigator is essentially standing in front of a closed door with limited information about what is on the other side. It might be a couple of people; it might be a group, each with a different story to tell; or it might be a long hallway with doors on each side that will need to be opened to find out what is behind them. So, what does an investigator need?
You want all relevant witnesses interviewed, but you also want the investigation concluded promptly and efficiently.
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The Complaint
Usually there is a written complaint, but not always. If there is a written complaint, your investigator needs to see it as soon as possible. If the complaint was verbal, the person to whom the complaint was reported can write a brief summary of information that the complaining party conveyed. It is not a good idea to try to edit it down to just the relevant information, because in the beginning it can be difficult to know what is relevant. The written version might include information about who the complainant spoke to. Who is that person in relation to the complainant? Supervisor? Union representative? Human resources employee? Vice president who had never seen the employee before? The investigator should also be told whether or not anyone accompanied the complainant when the complaint was made. How did the information get to the company? Did the person who received the verbal complaint report it to someone? Who? Did it happen some other way? The investigator will want to interview the person who received that verbal complaint. It helps if that person is first on the list, or second after the complaining party.
Relevant Policies
If the complaining party alleges that the actions of the subject violate a company policy or code of conduct, provide that information to the investigator. Surprisingly, this sometimes does not happen. The investigator might or might not be hired to make a determination as to whether a policy or code of conduct was violated. Of course, if the investigator will be making findings about policy violations, having a copy of that policy is critical. Even if the investigator is not making such findings, understanding the policy is essential to help determine what issues must be addressed and what facts need to be gathered. If the policy has been amended, updated, or revoked, provide the information to the investigator. If the policy was in place at the time of the alleged incident, it may still apply even if revoked. It depends on how it was revoked. These are details you will want to share with the investigator to get the best investigative report. Giving the investigator the correct information in the beginning will help streamline the investigation and build your reputation as a good client.
Details of the Investigation
If important deadlines are based on a memorandum of understanding (MOU), or a consent decree, or any other authority, tell the investigator as soon as possible. That may affect how the investigator proceeds. Maybe a co-investigator can be brought in to do some interviews. Investigators can use a variety of techniques if a report absolutely must be done by a certain date. www.awi.org
If your company wants recordings, or forbids recording, tell your investigator. Avoid the awkward moment where you ask for the recordings and learn that none were made. Agree on an admonition. Some employers have the parties and witnesses sign an admonition prior to their interview. If this is your practice, provide a copy to the investigator. The investigator can briefly review it with the person who is being interviewed. It is important for the investigator to know what employees have been told. This also avoids confusion if the investigator gives a slightly different admonition from the one the witness signed. If your company does not have a standard admonition, investigators might ask you to approve one that they have drafted. Or the investigator might ask you to develop an admonition. Because admonitions are basically directions from the employer, it is generally the employer who has the ultimate say in what information is conveyed. Plus, knowing what the investigator is telling employees is a good way to avoid awkward surprises later. Consider including a statement in the admonition telling the person being interviewed that they are never “off the record” with the investigator and that the investigator has a responsibility to provide all relevant information to the employer. It is frustrating for an investigator to have witnesses who want to tell the investigator something they say is really important but can only be told if they are off the record.
A Map
An investigator is similar to an explorer. Every explorer needs a map of the terrain. Different kinds of maps are available. Your investigator might need a geographic map—one that shows where the alleged violation took place, where each of the parties worked, and how people get into that space. Does the subject have to walk past the workstation of the complaining party? Do they sit next to each other in a large or small room? An organizational chart is another kind of map. Your investigator may or may not need one of the entire company, depending on the allegations. Your investigator might start with a small organizational chart, of one department or division, and later need more. Work schedules are also a form of a map. They show when the parties or witnesses might have been present in a relevant location. You might know which work schedules are relevant. Your investigator might find out that other schedules are also relevant. Make sure the investigator knows whom to contact to get more information. It is very helpful if the employer can educate the investigator about what kind of electronic information is available, and especially what the firm’s retention policy is. Although it is not common to provide, for example, extensive email or calendar-related THE AWI JOURNAL | DECEMBER Vol. 9 No. 4 | 2018
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information at the outset of an investigation, that digital information might well be needed later. It is important to make the investigator aware of how long that information will be retained as a matter of course.
The Lay of the Land
An explorer needs to know more about the territory and so does an investigator. Is this complaint part of a broader problem? Have there been upheavals in this particular workplace recently? Has there been erosion? Are layoffs being planned? Is there competition for a major promotion? Is the company about to merge with another company? Has there been a change in a policy or program that employees liked? Were people previously telecommuting and now cannot? Has there been a crackdown on employees being late to work? How many other people are in the same situation as the complaining party? If the complaint is that people from Greenland are never allowed to go to training, the investigator will need to know who else is from Greenland. Those employees might be additional complainants. Or they might prove that the people from Greenland did go to training. Any one of these changes could create an environment in which employees think they are being targeted, and fear for their jobs. If these changes are happening, it does not mean that they are the cause of the complaint. But they are part of the equation. Knowing about the changes can help the investigator be on top of information.
Time to Do the Job
One of the most important pieces of information to the employer at the beginning of (and throughout) the investigation is probably not available. The employer wants to know when the report will be completed. But that’s something investigators do not know. They can tell you their schedule, when they can interview people, and what documents they think they will need. But in the beginning it is very hard to say when the investigation will be concluded, and harder still to say when the report will be submitted. Investigators cannot reliably estimate how long a witness will take to provide information. Witnesses might be evasive, or too helpful, telling the investigator irrelevant details until, bing, the witness says something critical. Some investigations are straightforward short stories. Others turn out to be three-volume novels. Sometimes it is obvious from the beginning that the investigation will be complicated. Sometimes it is not. Investigators want to finish the assignment. They want to give you a timely, quality product. But sometimes that takes longer than anyone anticipates.
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Asking when the report will be completed may lead to false hope. A good investigator may not be able to accurately answer that question until the eve of completing the report, because of all the surprises and complications that the investigation might reveal. Disappointment is born of expectation. If your investigator gives you an estimate for submission of the report, it is best to consider the estimate as just that and not as a hard deadline.
Set the Scope of the Investigation
Sometimes witnesses provide so many tantalizing collateral details that if the investigator follows up on all of them, the report would be the modern history of the company, including when the parking lot was last paved and why. A case that starts out as a bullying complaint can become a sexual harassment complaint, and a disparate treatment case can raise wage and hour issues. If the complainant had a prior complaint, or prior discipline, the complainant may attempt to revisit everything from the prior matter. If the investigator does not know about the prior matter, he or she risks losing important time due to confusing the issues or simply listening to information that is not relevant to the current matter. It is important for the employer to brief the investigator on relevant prior matters and provide any rulings or discipline notices that were issued. Tell the investigator what the boundaries of the investigation are, with the understanding that if something comes out that could possibly expand those boundaries, the investigator can get clarification.
Documents
Well-organized, up-to-date personnel files will cut your investigation costs. Have a knowledgeable employee spend time with your investigator explaining how the files are organized. If a timeline of the complainant’s and the subject’s employment is available, make a copy for the investigator. If no timeline is available, consider having an employee in Human Resources create a short one. Many witnesses struggle to remember when they started work or when they were promoted or demoted, and they may not remember other key dates. An investigator who has it all set out in a timeline can confirm information with the witness and proceed more quickly, with less confusion. Depending on the nature of the complaint, it will often be apparent that specific documents will be needed. If the complaining party says that written requests for shift changes were always rejected, provide the investigator with copies of the written requests for shift changes, and give access to the personnel files for confirmation that those were the only requests. Also provide the policy for shift changes. No matter how proactive you are in providing documents, there is a good chance that the investigator will ask for documents that www.awi.org
you did not think were relevant. Provide them unless important confidentiality constraints exist. Remember, the investigator needs to know whom to ask for those additional documents.
Privacy
Investigators need private places to talk to witnesses. Some investigations are so contentious that witnesses should not be seen coming or going from an on-site conference room. Consider other nearby locations if the simple fact that an employee is being interviewed and is seen going into or coming out of the conference room where the investigator is located will trigger gossip or possible retaliation. That beautiful conference room with the floor-toceiling windows facing the hall is not a good choice unless it has privacy curtains or blinds. If a witness starts crying in a conference room with large windows visible to passersby, it will at best be awkward for everyone. It is difficult to set a specific time for each interview. Some witnesses may break down sobbing, which will require some extra time while they calm down enough to continue. If another witness is scheduled too close in time to the first witness, there is the risk that the privacy of each witness will be violated. It is best to talk to the investigator about timing and about whether breaks between interviews should be scheduled. It is always very useful for the investigator to have an on-site contact who can communicate with witnesses if the schedule needs to shift.
Some investigations are so contentious that witnesses should not be seen coming or going from an on-site conference room. Interview Schedules
It can be exhausting to interview people all day long. It can also lead to mistakes. Each investigation is different and investigators have different approaches. Sometimes an investigator needs to interview some people, go away and review notes, write witness summaries, and return with a new perspective on the complaint. Then more witnesses can be interviewed and the process repeated. Other times the very nature of the complaint is such that it is critical for the investigator to interview as many witnesses as possible before gossip whips through the workplace like a whirling dust devil. Understandably, employers often want all of the employees interviewed as quickly as possible. To avoid confusion, communicate with the investigator about scheduling preferences. Investigators recognize that you have an organization to run and that the schedwww.awi.org
ule won’t be perfect. However, investigators can let you know the parameters within which they will be most effective. And, of course, they are happy to work with you to accommodate everyone’s needs as best as possible. Some employers want investigators to spend a full day interviewing witnesses, one after another. Employers may think that is more efficient. But that is not always true. Investigators need time to mentally process information, to let it settle into the hippocampus, so they can start sorting the facts and thinking about what really happened.
Hospitality
You want your investigators to make the best use of their time at your company. You can help by making sure that they have parking; a key to the bathroom; a card key that gets them back into the conference room; access to coffee and water; and the phone number of a contact person they can call if a witness does not show up, or if they need a personnel file, or even just more coffee and water. Hospitality can also extend to giving investigators tools to make the interview process run smoothly. A box of tissues is essential. Some employers provide a basket of snacks for the witnesses. It is surprising how much people calm down if they have access to snacks and a glass of water. A reluctant witness may brighten up at the sight of potato chips, pretzels, or fresh fruit. A hungry witness will be less tense if given a light snack.
Understanding Delay
Investigators know you want the report. Instead of asking when the report will be done, consider asking if the investigator needs more information, if there is anything that you can clarify about policies, or any way you can help. Just hearing from you will remind the investigator of the importance of a timely report. Delay is the time between when the employer expected the report and when the investigator actually provides the report. Delay can be caused by any of the factors described above. Investigations can be like invasive plants. They start growing in different directions and it is difficult to control them. This phenomenon is most apparent while the investigator is writing the report. The primary reason an investigator takes so long to submit a report is that synthesizing, analyzing, and thinking about information take time. An investigator takes in a large amount of information that needs to be evaluated, culled, and ultimately placed in a report that provides the information in an organized framework for the decision maker. Credibility assessments are critical. Sometimes it takes time to distinguish between honesty, dishonesty, and slick evasion. Many an investigator has been driving, working out, cooking, or relaxing when suddenly they think, “Wait a minute, that doesn’t make any sense. He said he was told to lay the cement in late July in THE AWI JOURNAL | DECEMBER Vol. 9 No. 4 | 2018
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Phoenix, but that is the monsoon season. No one lays concrete in Phoenix in July, unless they absolutely have to. Why would the shift boss tell him to do that? If it rains or a haboob comes up, the cement is ruined. It has to be broken out with jack hammers and you start over. He would look like a fool. Is that what the shift boss wanted?” When investigators are working on an investigation, it is usually in the back of their minds most of the time. Even when they wish it was not. There are no 12-step programs for constantly thinking about the investigation. The process of letting the facts settle, and mentally sorting them over and over again, makes a good investigative report instead of one that seems to be just a transcript of the interviews. Investigators need that middle phase, somewhere between unconscious and conscious thought, to let the facts fall into place, or to show that the claimed facts are out of place and not believable.
Report Format
If you want a certain format, the chances of getting it are much better if you tell the investigator what you need in the beginning. Some employers want an executive summary. Some do not. Some want the information from each witness described in a section dedicated to that witness. Some want the report broken down into sections based on issues, with information from relevant witnesses included in each section. If a witness did not have relevant information regarding a certain issue, some employers want that specifically stated in the section.
There might be times when requests for additional substance are appropriate. Maybe the investigator failed to provide all the salient information that was part of the decision-making process. Maybe the report did not adequately explain how the findings were reached or what information supported them. Sometimes a report is not what you expected. You think the factual findings are wrong. An independent investigation means that the employer cannot ask the investigator to change the findings. The best protection is a truly independent investigation. Which is exactly what it sounds like: independent. There are certain requests that an investigator simply cannot grant.
Invoices
Different companies handle invoices in different ways. Yours may want the investigator to use an Excel spreadsheet that can be downloaded to your accounting system. Others may use Counsel Link through Nexis Lexis, which encourages the investigator to use the employer’s software, on their website. (Counsel Link is a little bit tricky at first but very efficient after it’s used a few times. Counsel Link requires the user to bill his or her time in the month after the work was performed, but no later. The invoice for all work and expenses in February must be submitted in March.) If your company uses a specific billing process, tell the investigator as soon as possible so that the investigator does not have to duplicate the process of time keeping or billing.
Tell the investigator what you want. When you go to a restaurant you do not just say that you are there for dinner and wait to see what comes out of the kitchen. If you are not sure what kind of report you want, spend some time with the investigator discussing your options. Solicit the investigator’s ideas. The investigator will be more productive and may be able to produce the style of report you want with fewer drafts. Then everyone will be happier.
Process the invoice in a timely fashion. Everyone wants clients who pay on time. If there is a problem, explain what happened. Investigators can be very understanding. After all, we are also running businesses. We want to have the best possible working relationship with you. We want to be your investigator of choice and we hope that you also want to be our favorite client.
Revisions
Nora Quinn is a lawyer in the Inland Empire in Southern California. She conducts workplace investigations and serves as a hearing officer for private employers, educational institutions, and government entities. She previously served on the Los Angeles County Equity Oversight Panel and was an administrative law judge for the California Unemployment Insurance Appeals Board. She has extensive experience with the ADA, employment law, and investigations. She can be reached at QuinnLawFirm@gmail.com.
Be careful when requesting changes. If investigators are asked to testify in the future, they will have to tell the truth. They will be asked about any changes requested by the employer, and how many drafts were required. They will likely have copies of all revisions that were requested, and of subsequent reports. There are different kinds of revisions. You might want all the witnesses designated as Mr. Killjoy, or Ms. Miracleworker, or Dr. Smibelbobble. Other employers want last names only. An employer might want the titles of different sections in bold letters, or centered, or in italics. Maybe the company uses Times New Roman and not Arial. An employer can ask for these changes without fear of appearing to try to change the outcome.
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Practice Pointers
Tips for those new to investigations (and the rest of us) By John Matejkovic and Margaret Matejkovic
“When you have eliminated the impossible, whatever remains … however improbable … must be the truth.” —Sherlock Holmes1 Isn’t “the truth” what we all seek as investigators as we strive to conduct adequate, effective investigations? Yet, we all know how elusive the truth can be; how subjective; how variable. It is in the spirit of our collective quest for and commitment to the truth in every investigation we conduct that enlightens us and advances our skills. This article is prepared for those new to investigations who join us in our search for the truth and offers a few practice pointers, tips, and suggestions based on some of the authors’ experiences as workplace investigators. We respectfully submit, however, that even seasoned investigators reading this article may either learn from or be reminded of the importance of at least one practice pointer contained herein to further our collective ongoing search for the truth. Earlier this year, in an unpublished memorandum opinion, the Ninth Circuit reinforced a long-standing principle that an investigation is adequate if it gathers substantial evidence, includes notice to the employee of the alleged misconduct, and provides the employee with a chance to respond to the allegations.2 In considering how to organize the practice pointers contained in this article, the authors elected to present one practice pointer or suggestion from various points in the life cycle of an investigation. Additionally, all practice pointers and suggestions are gleaned from recent real-life investigations conducted by the authors.3 Although this article certainly is not intended to be a comprehensive summary of all aspects of an adequate investigation,4 the following select practice pointers are offered as examples of considerations appropriate to conducting an adequate investigation.
I. Receipt of Initial Complaint
It is important to be aware that frequently at the outset of an investigation the investigator may need to affirmatively address concerns and challenges that have been created by inadequate or ineffective acceptance of the initial complaint by a well-intentioned supervisor. As so often happens, the initial complaint is accepted by a very well-meaning supervisor, who nonetheless is not experienced with conducting investigations or expected to conduct any ensuing investigation. Although this supervisor is not the professional www.awi.org
who may ultimately conduct the investigation, the impact of his or her initial response cannot be overstated, because by the time the complaint reaches the attention of the investigator, the complainant likely already has formed an initial impression of how objective, neutral, and unbiased (or not) the investigation will be, based on that initial response. The investigator is then left with the unenviable task of trying to rebuild the integrity of the investigation even before it has begun. For example, a well-intentioned supervisor who received an employee’s complaint of harassment against John Doe was caught off guard by the complainant’s concern and tried to defuse the uncomfortable situation by responding to the complainant, “I don’t think you should overreact; John Doe treats everyone like that, but we will look into it.” The ensuing investigation is now challenging from the outset from several perspectives, including but not limited to (1) the supervisor’s acknowledged awareness of the behavior alleged by the complainant, and (2) the supervisor’s confirmation that, although an investigation may occur, the complainant’s concerns have been, at best, minimized or, even worse, dismissed. Just as problematic, however, would be a response from the same well-intentioned supervisor who replies, “Thanks so much for coming forward. We will look into your concerns right away and make sure John Doe stops this behavior.” This response can be just as problematic since it presumes that John Doe did what the complainant accused him of doing.
It is critical for the investigator to know and understand exactly what he or she is charged with investigating. If the investigator is aware the well-intentioned supervisor made either type of (or some other) response, the investigator should affirmatively reinforce the tenets of integrity for the resulting investigation. For example, the investigator may wish to affirmatively state to the complainant (or other relevant interviewee) at THE AWI JOURNAL | DECEMBER Vol. 9 No. 4 | 2018
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the outset of the investigation, “Regardless of what you may have been told or may have heard from any source, the employer takes allegations of workplace misconduct seriously, and I am here to conduct an independent, unbiased investigation.”
II. What to Investigate
Understanding that not all workplace concerns need to be investigated. A recent investigation conducted by one of this article’s authors resulted from an employer not wishing to own its decision to terminate an employee. In other words, an employer that did not fully support its decision to terminate decided instead to hire an external investigator to investigate a seemingly random allegation presented by the employee being terminated at the time of his termination meeting. The employee being terminated was a nonsupervisory employee who demonstrated a long-standing pattern of undocumented yet troubling interactions with co-workers (e.g., engaging in an offensive political diatribe and other unprofessional behavior with several employees, shirking job-related duties). The supervisor finally had enough of this behavior and recommended termination of employment. Notwithstanding the lack of effective documentation, leadership and HR agreed with the supervisor’s recommendation and the decision was made to terminate employment. During his termination meeting, the employee raised one vague allegation of a personality conflict with a long-term, highly regarded employee. Such an allegation had never been presented before by anyone (including the employee being terminated) against this employee nor had the supervisor ever witnessed any inappropriate or unprofessional behavior by this employee. The supervisor, senior leadership, and HR all believed the employee being terminated was grasping at straws trying to create an issue where none existed. Notwithstanding their beliefs, however, they made the decision to delay the termination decision and fully investigate the allegation of the employee being terminated. Now, certainly, an allegation of inappropriate behavior against any employee warrants consideration as to the appropriateness of an investigation, but when such issues are raised, the employer should make an affirmative decision as to whether the issue (such as a personality conflict) is amenable to a more informal resolution as compared to initiating a formal investigation. If an employer makes an affirmative decision not to formally investigate an issue, the employer should communicate its decision to necessary individuals and also clearly and timely document this decision, including its reasons for doing so. Furthermore, if an employer determines that an investigation is warranted, one significant decision is whether an external investigator should conduct the investigation. Often such a decision is made by the employer, in consultation with its employment counsel.
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III. Determine the Scope of the Investigation
Securing advance agreement with the employer as to the issues being investigated is essential. It is critical for the investigator to know and understand exactly what he or she is charged with investigating. In other words, the investigator needs to be clear as to the issues that are to be explored during the course of the investigation. Although investigators should never prejudge where an investigation may lead, often the scope of an investigation can change (e.g., be expanded by potential additional issues or allegations). The investigator should ensure that any expansion of the scope of the investigation is acceptable to the employer and also that the investigator is the proper person to investigate any expanded or additional issue(s). Additionally, the investigator should also be clear at the outset of the investigation as to whether the investigator is charged with providing recommendations in addition to the investigator’s fact-finding role. Furthermore, the investigator needs to know the expected format of any report issued at the conclusion of the investigation. Prior to beginning an investigation it may be advisable for investigators, particularly external investigators, to secure input from the employer and its employment counsel related to these expectations.
IV. Prepare for the Investigation
Effectively consider and prepare for all aspects of the investigation. This may sound basic, but preparation considerations related to where the investigations are held, potential interim protections, among many other small but important procedural details, can have a huge impact on the outcome of an investigation, including the resulting perception of the investigation’s fairness and objectivity. For example, the scope of an investigation recently conducted by one of the authors of this article was the adequacy of the internal investigation conducted by a qualified, experienced professional in the employer’s human resources department. The complainant argued that the internal investigation was inadequate based, in part, on her observation of the timing of the interviews of witnesses (the witness interviews took place in a conference room observable from the complainant’s work station). Notwithstanding that many of the witnesses identified by the complainant did not have any relevant knowledge of the incident at hand, from the vantage point of the complainant as she was viewing the comings and goings of the witnesses for their interviews, not enough time had been spent by the HR investigator who was looking into her claims. Additionally, as discussed in greater detail below as related to confidentiality considerations, the complainant did not have a legitimate need to know the identity of the witnesses who were interviewed in connection with the investigation.
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V. Develop Effective Questions What should be asked of whom?
Too often, investigators will walk into an interview with pen and paper in hand and essentially say, “talk to me, interviewee.” The effective investigator needs to be comfortable asking questions targeted to uncovering the truth. To further this goal, the investigator should come prepared in advance with thoughts as to why exactly the interviewee is participating in the investigation. Planning is an integral component of an adequate investigation and, although investigators need not (and should not) be bound to the questions they have developed through their planning, certainly advance thought as to what areas need to be explored is very useful. A good tactic is to ask open-ended, journalistic questions: • who (e.g., who committed the alleged behavior? were there any witnesses to the alleged incident? did anyone other than complainant appear to be concerned by the incident?); • what (e.g., what exactly was said or done?); • when (e.g., what was the frequency of the incident? what were the date(s) and time(s) when the incident(s) occurred? was it during work time, after hours, or at a work-related function? what was the timing between the incident and the complaint?); • where (e.g., what was the location where the incident occurred? what was the physical layout of the location?); and • why (e.g., what is the interviewee’s perception of context as well as his or her reaction to the incident?) These are just a few examples of useful inquiries to advance the overriding goal of finding the truth. Sometimes, the questions posed by investigators can be awkward and difficult to ask. Thus, another critical component of planning may include the investigator practicing or role playing with a trusted colleague. Such exercises include reviewing the questions to be asked, preparing responses to anticipated questions, or imagining what issues interviewees might raise (e.g., inquiring of a complainant or the implicated party about the specifics of a sexual harassment allegation, asking percipient witnesses about allegations of racially offensive language).
VI. Confidentiality
Always ask yourself Who and What. The concept of confidentiality in the workplace is often misunderstood and misused—not only in investigations but also in every aspect of dealing with employees. Consistent with best practices and a plethora of legal definitions, confidentiality does not mean absolute secrecy; however, often many interviewees who participate in investigations expect absolute secrecy based on their personal definition (as well as the generally accepted dictionary www.awi.org
definition) of confidentiality. Thus, it behooves an investigator to explain to those being interviewed that disclosure of their information and identity may need to be shared, coupled with statements reinforcing necessary protections for all parties (e.g., commitment to prohibition of retaliation in any form) even if such information and/or identity need to be shared. However, as we investigators all likely have heard, confidentiality entails sharing information on a “need to know” basis. So, it is useful to always think about confidentiality in a bifurcated way, by asking oneself two questions: who has a legitimate need to know the information, and what information does that person need to know? In other words, simply because someone (e.g., the complainant, the implicated party, a percipient witness, a supervisor) may have a need to know some information at issue in an investigation, that individual may not have a need to know all information. Furthermore, even though an individual may want to know information, do they legitimately need to know? Investigators should always reinforce their commitment to the tenets of confidentiality, including an unwavering commitment that information will be shared only with those who have a legitimate need to know the information. As related to the above example regarding the complainant who questioned the adequacy of the internal investigation conducted by HR, in addition to needing to know the actual length of time each individual was interviewed, one should make an even more elementary inquiry as to confidentiality: did the complainant need to know anything (that is, who) and, if so, what did she need to know? Although the complainant generally may have a need to know that percipient witnesses were interviewed, she likely does not have a need to know the identity of such witnesses nor the length of time of any resulting interviews.
VII. Importance of Effective Opening (and Closing) Statements This is a critical yet often overlooked component of an adequate investigation. A key to an adequate investigation is the use of an effective opening (and closing) statement. All interviewees need to feel that their participation matters; that there has been no predetermination of “the truth”; and that the investigator is a neutral, unbiased part of the investigation process. An example of an important element to include in the opening statement (as well as reiteration during the closing statement) is ensuring that the interviewee understands what confidentiality means to the investigator, to the employer, and to the interviewee him- or herself. It is important that all interviewees feel free to share their views and understand that information will be maintained and shared strictly on a need-to-know basis. THE AWI JOURNAL | DECEMBER Vol. 9 No. 4 | 2018
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An additional significant consideration in the opening and closing statements includes a reminder to all interviewees of the employer’s commitment to a workplace free from retaliation in any form, including providing the interviewee with the means by which he or she may report or share any such concerns (e.g., with the investigator, with the employer, through a hotline or other reporting source provided by the employer). Furthermore, the investigator should remind the employer, throughout the investigation and afterwards, that it needs to ensure a workplace environment in which retaliation is not permitted. Notably, the Equal Employment Opportunity Commission (EEOC) continues to report an increase in the number of retaliation charges including a nearly 3 percent increase in such claims for fiscal year 2017.5
Frequently, investigations turn on credibility determinations. Investigators should not rely on one factor alone when making such assessments.
VIII. Determine Credibility Whom do you believe and why?
Frequently, investigations turn on credibility determinations. Investigators should not rely on one factor alone when making such assessments. Examples of factors that may be used include an interviewee’s body language, his or her reaction to allegations, any difference in the interviewee’s version of events from those of other interviewees, the basic “common sense” of interviewee’s version, the forthcoming nature of the interviewee, and identification of percipient witnesses or documentation that can corroborate or dispute facts at issue in the investigation. A number of publications can provide insight and guidance to make such determinations (e.g., Leiberman, You Can Read Anyone, MJF Books (2007)).
IX. Document the Investigation
Effective documentation can demonstrate the adequacy, good faith, and reasonableness of the investigation. Effective documentation can demonstrate that the investigation was adequate, conducted reasonably well, and performed in good faith. The investigator should ensure all witness interviews are memorialized through effective documentation (e.g., thorough documentation of information conveyed by each witness). Documentation of the witness interviews should not include the inves14
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tigator’s conclusions. The investigator should always remember investigation documentation may be discoverable in the event of a lawsuit or a charge of discrimination and therefore may be seen by others from outside the employer (e.g., an employee’s lawyer, an administrative agency such as the EEOC, a judge, a jury). An investigation may also include the preparation of a written report summarizing the investigation and containing any conclusions or recommendations. When thinking about adequate documentation related to all of the documents that may be generated by the investigator during an investigation, it is often useful to think about what we call the Cs of documentation: Effective documentation is correct, that is, the documentation is accurate. Such accuracy includes, at a minimum, proper punctuation, spelling, and format. A poorly written document will reflect negatively on both the employer and the investigator. Additionally, and more importantly, the documentation should accurately reflect what transpired during the investigation. Also, it is important to make sure that any characterization of behavior or actions are correct and value neutral. In a recent example, an internal investigator labeled the behavior at issue as “mild sexual harassment.” During its own investigation, the administrative agency reviewing the resulting charge of discrimination considered the internal investigator’s statement to be an admission by the employer that unlawful behavior occurred. Effective documentation is complete and clear. Many documentation problems arise because documents are unsigned, undated, or illegible. Documents prepared by an investigator should be clear as to when they were prepared, and they should be legible and free of extraneous marks and comments. Also, since investigation documents related to issues presented within charges of discrimination or lawsuits will often be viewed externally (e.g., in a court, before an administrative agency, by an employee’s attorney), sometimes long after the documents were written, the documentation should be complete and clear to the potential reader as well as to the investigator as an aid in recalling any necessary information. Effective documentation is complete, but is also concise. Although it is important to convey all relevant facts, observations, and conclusions, investigators should strive not to be unnecessarily wordy. Effective documentation should be prepared contemporaneously with the investigation. Although contemporaneous does not necessarily mean immediate, it does mean that documentation is prepared as close in time as possible to what is being documented. Documentation created at or near the time at issue in the investigation will usually be perceived as genuine. Effective documentation is candid; it is clear and specific.
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Effective documentation is consistently applied. An investigator can often demonstrate the credibility of his or her documentation by demonstrating the consistency with which such documentation was created, which should be consistent with the investigator’s own practice. Finally, documentation should be compliant, that is, it is developed and maintained in compliance with relevant laws, regulations, and best practices.
As noted at the outset of this article, we believe even seasoned investigators can benefit from being reminded of practice pointers aimed at colleagues who are newer to conducting investigations. And the authors do not exempt themselves from this opportunity to advance their skills. Thus we welcome practice pointers anyone reading this article may wish to share with us as we all continue to advance our search for the truth.
John Matejkovic is an Associate Professor of Business Law at the University of Akron College of Business Administration in Akron, Ohio. He can be reached at jem@uakron.edu.
X. Conclude the Investigation
It is critical to bring appropriate closure to an investigation. It is important for the investigator to attain the identified and established goals at the end of the investigation (e.g., facts uncovered during the investigation, needed recommendations). It is also important at the conclusion of the investigation for someone (the investigator or the employer, as appropriate) to communicate to the relevant parties. Unfortunately, often at this stage of an investigation the investigator or the employer fails to circle back to the complainant to let him or her know that the investigation has been concluded and if there are any possible next steps. And, again, think of this aspect within the parameters of appropriate confidentiality considerations. Does the complainant have a need to know any information and, if so, what? Although normally not communicated by the investigator, at the conclusion of an investigation, the complainant at minimum has a need to know the employer considered his or her concerns and took action appropriate to the situation. Such action need not be the action preferred by the complainant, and the complainant also may not need to know the specific actions taken by the employer.
Margaret Matejkovic is Of Counsel with Kastner Westman & Wilkins, LLC, and Adjunct Professor, The University of Akron School of Law, both in Akron, Ohio. She can be reached at ema16@uakron.edu.
Arthur Conan Doyle, The Adventure of the Beryl Coronet, in The Adventures of Sherlock Holmes (1892) (quoting Sherlock Holmes). 2. Stetner v. City of Quincy, No. 2:15-CV-210-RMP, 2016 WL 7411129, at *4–5 (E.D. Wash. Dec. 22, 2016), aff’d, 728 F. App’x 738 (9th Cir. 2018); see also Cotran v. Rollins Hudig Hall International, Inc., 17 Cal. 4th 93 (1998). 3. Please note no names or other identifying information are used in any examples provided herein. 4. Nothing in this article is to be construed as legal advice. Readers are encouraged to seek the advice of qualified employment counsel when considering questions related to specific investigations. 5. See EEOC.gov, Charge Statistics, https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last visited Dec. 6, 2018). 1.
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2019 AWI Training Institutes The Association of Workplace Investigators, Inc. invites you to join us for a unique opportunity to network and learn with workplace investigators from around the world. In keeping with our mission to promote and enhance the quality of impartial workplace investigations, we are proud to offer the intensive Training Institute for Workplace Investigators, the gold standard in our industry. This training includes a four-day accredited course followed by a day of assessments, with a certificate for students who pass the tests. Santa Barbara Training Institute — SOLD OUT February 25 - March 1, 2019
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Deadlines: Feb. 15 for Issue 2, Apr. 17 for Issue 3.