Employment investigations are complex and can have significant ramifications if a lawsuit is later filed by an employee. Once a determination is made that an employment investigation is necessary, it can be handled internally by an employee trained in conducting investigations, or it can be handled by an employment attorney or private investigator (outside HR professionals must be licensed as private investigators). The investigation will vary according to the individual facts of the case, but the general steps in the investigative process are as follows:

INVESTIGATION:

• Review initial complaint
• Secure any potential computerized evidence, such as email
• Review all relevant documents received including company personnel policy (if any)
• Interview complainant
• Interview witnesses
• Review any additional documentation received
• Interview accused
• Review all evidence obtained and prepare report

Review Initial Complaint:
The first step for the investigator is to carefully review the initial complaint. This may be in the form of a written document, verbal information provided by the complainant or perhaps information obtained from a third party such as a supervisor relaying the information to HR.

Computerized Evidence:
This can be a tricky area regarding privacy rights and federal laws that sometimes require employers to preserve electronic evidence. Legal counsel should be consulted before evidence is obtained in this area. However, once the investigator is satisfied that obtaining electronic evidence is legal, computerized evidence, especially email, can prove to be invaluable in conducting a thorough investigation and proving or disproving allegations.

Review Relevant Documents:
It is important to review all documents on hand so that the investigator has all the facts prior to conducting the complainant's interview. This may include copies of emails, notes or letters that the complainant or perhaps a supervisor provided and the company personnel policy. It is important to later determine whether or not the company's policy regarding the alleged misconduct has been violated, so the investigator must be familiar with the policy in order to ask the right questions during the interview process.

Complainant Interview:
During the complainant interview, questions should center on getting the facts of who, what, when, where and how. The investigator will need to specifically ask these questions for each incident that supports the allegation/s and carefully document what the complainant states. Questions should be short and open-ended and center on involved persons, exactly what happened and what was said by both parties, the date and times of the incident/s, where it happened and exactly how it happened. Ask the complainant about his/her reaction to the incident and whether anyone saw or heard anything. As you move through each incident, ask if it was reported or discussed with anyone. Ask about the complainant/accused relationship, e.g. is it work related only or do they have a social relationship outside of work? At the end of the interview always ask the complainant how they would like the situation resolved.

Witness Interviews:
The following discussion includes the complainant and accused interviews. Some thought should be given to where the interviews will take place. This is important because in order to obtain the most useful information during the interview process, the interviewees must feel safe to speak freely. An empty office or conference room that is removed from the main hub of business activity is a good choice so that other employees do not witness a parade of employees going to/from the interview. Oftentimes employee witnesses are reluctant to provide information when they believe other employees can hear what is being said, identify who was interviewed and for how long. Workplace investigations tend to create a lot of gossip and tension amongst employees so it is best to keep the witness identities confidential (where possible) and to minimize the disruption to staff and business productivity.

Next, some consideration should be given to where the interview participants will be seated. Most importantly, the witness should feel free to leave at any time and not be made to feel they are under arrest or are being forced to stay in the interview room. Allegations of false imprisonment can be made later if the witness believed he/she was being forced to remain in the room. Some preventative steps are to seat the witness closest to the door and explain to them they are free to leave at any time.

It is also important for the investigator to sit fairly close to the witness, facing them without the burden of a large table or desk in between them. When an interviewer assumes this position, it creates a much more relaxed environment and it is easier to establish a rapport with the witness.

The investigator should always start the interview by introducing themselves and explaining the purpose of the interview. It should be emphasized to the witness that the investigation is confidential and therefore should not be discussed with any other employee. The witness should be told that the investigator will not convey to other witnesses what was said or identify who was interviewed. However, with the complainant, it is not possible to keep everything confidential, as other witnesses and the accused will have to be asked very specifically about the complaints brought forth. With that in mind, a complainant/witness will frequently ask who will read the report. Never promise that the report is completely confidential as the investigator has little control over the confidentiality of the investigation and subsequent report once it is completed. The investigator should state that he/she will keep information confidential but that a report will be prepared detailing all witness statements and information obtained and it will be given to upper management. Or, the investigator may identify who the report is addressed to, i.e. company president, HR Director or Legal Counsel, etc.

Start the interview by asking general questions such as how long they have worked for the company, job title etc. If this information is already known to the investigator, then ask about their relationship to the complainant/accuser, i.e. are they work acquaintances or do they have a social relationship outside work. The more direct, difficult questions should be posed after some rapport has already been established.

During the interview, the investigator should be observant of the witness' demeanor and body language as this is directly related to witness credibility and whether or not the witness was believable.

Always end the interview (applies to complainant/witness/accused) by again stating that the matter being investigated is confidential and that the witness should not discuss it with anyone. Ask if there are any other witnesses who may have additional information or any documentation that is relevant. Ask them if there was anything they want to add or if they know something about the matter that wasn't asked. The witness' should be given the investigator's contact information in case they have additional information they want to provide at a later date.

Document Review:
It is important to review all documents obtained in preparation for the interview with the accused.

Accused Interview:
Some additional areas of inquiry regarding the accused include asking what the accuseds response to the allegations are and if this type of allegation has been brought up before (pattern and practice). Carefully go through each incident alleged by the complainant and if the accused denies the allegation, ask why the complainant might make false statements. Review any documentation with the accused that supports the complainant's allegations. Give the accused every opportunity to explain his/her side and whether there are any additional documents or witnesses that support the accuseds position.

Report Preparation:
Investigative reports can be summaries only or a very detailed depending on what is required by the person requesting the investigation. Always assume when writing the report that the reader knows nothing of the incident so that anyone reading the report later will have a full understanding of the matter. The report should be organized as follows:

• Explanation of the underlying facts
• List each specific allegation
• List the conclusion for each allegation
• Analysis of the facts in support of the conclusion
• A summary of the investigation process including a list of documents reviewed and a list of those interviewed

If the report is comprehensive, there will also be a section detailing each document reviewed and a summary of each witness interview.

Remember, workplace investigations are complex with many nuances requiring a lot of training over and above merely obtaining a private investigator's license. An excellent source for conducting workplace investigations is a private investigation firm who specializes in this area.

Gailey Associates, Inc., a private investigation consulting firm, with offices in Los Angeles and Orange Counties have dedicated workplace investigators with many years of training and experience.  Three of their employment investigators are also licensed as attorneys, two in the state of California and one in the state of Minnesota.  Gailey Associates' clients receive the benefit of investigators who have legal training and expertise, without the very expensive rates that law firms may charge. For more information regarding Gailey Associates, Inc. and their services, go to www.InvestigatorForYou.com or call 714/622-1900.