19

September, 2022

Workplace Investigations: Why Get a Written Report

One of the thorny process questions that eventually arises in any workplace investigation is whether and how to memorialize the findings and conclusions from the investigation. Is it sufficient just to save the notes from the investigation interviews in a file? How about a letter notifying the key parties that the investigation has been closed and the concerns raised were or were not substantiated? Perhaps an executive summary would be helpful to memorialize the concerns raised, the process followed, and the final conclusions? Or should you also capture the factual information considered and assessed in reaching those conclusions?

Retaining Notes
Yes, the notes should be saved from all investigation interviews. So should any other documents, photos, data, recordings, video or other electronic communications that may have been considered. All those items are important to reflect what issues were raised, what information was gathered, and what support exists for the concerns.

Notifying the Parties
Yes, you should notify the key parties whether the concerns raised were or were not substantiated. It is even more helpful if you inform all the parties – not just the complainant(s) and respondent(s) – that the investigation has been closed. Those communications may be verbal or written, depending on your organization’s practice and best determined with the guidance of legal counsel.

What is most important is that the communications actually occur. It provides closure to the parties and those involved in the investigation. That way they know that the issues were considered and appropriate actions have been taken. You thereby enhance confidence in your process — that concerns raised do not fall into a “black hole.” You also stem the tide of gossip.

When there is no follow-up, people wonder whatever happened with the matter that x person raised. Worse still, people conclude that because they heard nothing further it must mean that the organization did nothing with the information that those individuals had provided. All your hard work to investigate becomes for naught.

Drafting an Executive Summary
It often is helpful to prepare at least an executive summary of the investigation that was conducted. The executive summary should:
• Outline the concerns raised and when they were brought to the organization’s attention;
• Identify who was interviewed and their job titles;
• Identify what documents or other information was reviewed; and
• State the conclusions with regard to each concern raised and the key findings in support of those conclusions.

The executive summary serves essentially as a road map.  Decisionmakers can reference it as a basis for considering appropriate responsive action. Should a concern arise in the future involving one or more of the same parties or work group, a subsequent investigator can similarly reference the executive summary to understand the scope of the prior investigation.

While helpful, an executive summary by definition lacks detail. It does not summarize the information provided by each interviewee, it includes limited information about where conflicting accounts were provided and how credibility was assessed, and it most certainly cannot “stand on its own,” should the underlying complaint proceed to an adversarial posture. For that level of detail, you need a full written report.

Advantages of a Written Report
A written report should start with an executive summary and offers all the benefits of that as a road map to the issues, process followed, and conclusions. The written report should go further, though, and tell the full narrative of what concerns have been raised, what the interviewees said in regard to those concerns, where documentary or other evidence was relevant to the concerns, what conclusions were reached, and how those conclusions were derived. In contrast to the executive summary, the written report should provide sufficient detail such that it is not necessary for the investigator to provide any additional information.

A written report thus reflects the investigator’s findings and analysis, and thereby supports the conclusions reached. It memorializes a considered process and demonstrates due diligence by the organization. The report also allows decisionmakers to carefully consider appropriate action, consistent with the investigator’s findings.

Not every workplace investigation results in the drafting of a full written report. Cost and time often are significant factors, as a written report is not something that can be knocked out in a few hours. Where an investigation has found sufficiently serious violations of policy that the organization has decided to terminate the respondent’s employment, some organizations conclude that no written report is necessary. The termination itself is viewed to demonstrate the seriousness with which the issues were considered and addressed. Other organizations in that same situation will conclude that a written report is very much needed to memorialize why the respondent’s employment was terminated. That is particularly so if the terminated individual would have been eligible for some severance package, stock award or bonus, or is to be stripped of a prior award, based on whether employment was terminated “for cause.”

A written report offers other benefits. Sometimes an organization may disclose portions or all of the report to a complainant’s attorney and can use the report to further settlement discussions. Other times, the persuasion is internal, and the report may be impactful in garnering support from senior leaders for changes within the organization.

Ultimately, whether to request or prepare a written report is an individualized determination. Workplace investigations, done properly, take time and care. Organizations that commit that level of effort would do well to ensure they have memorialized their efforts in some fashion. That written record can inform future actions relevant to the individuals and group involved and the organization as a whole, and it can protect the organization in the event a matter proceeds to litigation.

By Tracey I. Levy

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4

August, 2022

Workplace Investigations: Video vs. In-Person Interviews

Prior to the pandemic, in-person interviews were generally considered the preferred method of conducting workplace investigations. They allowed the investigator to build rapport with the interviewee, the investigator could observe behaviors by the interviewee that might be relevant to credibility, and the investigator could know who was present for the interview and ensure a private meeting.  But in March 2020, that all had to change.  My Cornell colleagues and I wrote an article at that time, assessing the opportunities that videoconferencing offered as a virtual alternative to in-person interviews and identifying the caveats and precautions for which the investigator should be prepared.

Nearly two and a half years later, while employees have returned to their workplaces to varying degrees, I continue to conduct virtually all my workplace investigations by videoconference. Yes, it saves me a commute, but I actually like getting out into the world with people and I care deeply about ensuring the integrity of my investigations, so saving the commute would not suffice if it compromised my quality standards. Rather, over the period that remote interviews were the only viable option, I have come to appreciate some enduring advantages that they offer over in-person interviews.

Ensuring Privacy

Pre-COVID, one of the greatest challenges I faced when conducting in-person interviews was in securing a private location for those meetings. Most workplaces have shifted to glass-walled offices and conference rooms, many with little or no shading to afford visual privacy. I would strategically situate myself so that I faced outward, and only the interviewee’s back would be visible to passers by, but that afforded only a limited degree of anonymity. I would request to use a conference room or office that was off the beaten path, or at least in a different location than the coworkers of the people I would be interviewing – with mixed success.

For one investigation, I visited nearly every coffee house in a five-town radius of the client’s office.  No interviewee felt comfortable that the office could afford privacy and each had a different idea, in relation to their own hometown, as to where our presence would go unnoticed.  Investigation interviews can be conducted successfully in a coffee house or similar public space, but it requires the right mix of variables – other people conversing, so that my interview will not be a prominent sound in the space; a table spaced far enough from others such that it will be difficult for the people closest to us to eavesdrop; and frequent turnover or activity so that if we lingered longer it would not be noticed.

Videoconferencing spares me most of those logistical challenges. With the caveat that my interviews are generally conducted in areas where wifi access is abundant, I have extremely rarely had to shift from video to audio only interviews. Even employees who do not have a laptop or tablet are able to meet through their smartphone. The challenge with videoconferencing is that you never know who may be offscreen, just as you never know if your conversation is being recorded, so confirming the person is in a private place to speak sets a baseline expectation.

Keeping Everyone Safe

Videoconferencing offers the ultimate assurance of social distancing. While we may have moved past the worst of the pandemic, the need to quarantine or isolate due to exposure to COVID-19 can still arise at any time, and side-line plans for in-person meetings.

Videoconferencing also reassures all parties against exposure to other infectious diseases and milder ailments.  Years ago, when I was conducting investigations internally as an Employee Relations specialist, I once came to work while fighting a bad head cold so I could proceed with the scheduled interview of the respondent, a relatively senior manager who had a very busy schedule. After the interview, I received feedback from the HR Business Partner that the respondent complained I had been sneezing throughout our meeting. Rather than being  appreciated for my perseverance and commitment, I had made the manager uncomfortable by my physical presence. It was an interview that I should have postponed, or taken from the safer distance of a video screen.

More recently, I met in person to interview the respondent for a particularly sensitive matter.  Having just recovered from COVID-19 and completed my 10 days of isolation, I was feeling unusually secure about meeting in-person.  The day after the interview, I developed symptoms and tested positive for a rebound of COVID, and was put in the uncomfortable position of having to reach out to the respondent and others who had been present for that interview to advise them of their possible exposure.  Meeting by videoconference ensures that the investigator, the interviewee, and any third-party representatives are all safe from infection.

Moving Things Along

One of the other benefits of videoconferencing is that it enables speedier coordination of meetings.  Scheduling time to meet with individuals who travel frequently or work in multiple locations is much simpler when they can join via videoconference from virtually anywhere.

Making Exceptions

Notwithstanding these benefits, there still are times when videoconferencing may not be an ideal option. In particular, videoconferencing makes it slightly more challenging to build rapport and make the interviewee comfortable enough to provide the investigator with responsive information.  For that reason, when conducting interviews of individuals who report having experienced traumatic situations, such as sexual assault, in which building and maintaining that rapport and comfort is essential, the benefits of meeting in-person may outweigh the challenges.

There is no one right way to conduct workplace investigation interviews, provided there is a considered process behind decisions that are made.  Videoconferencing offers advantages, and my old bias toward in-person interviews has given way to a new reality.

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In this Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

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21

July, 2022

Workplace Investigations: When Should You Consider Retaining an Outside Investigator

Increasingly, organizations are conducting workplace investigations in response to employee concerns – both those raised formally to human resources or through a written complaint or attorney demand letter, and those raised informally in a conversation with a supervisor that is brought to human resources’ or an equivalent function’s attention.  Matters that, in the past, might have been handled by a conversation with the subject of the complaint and perhaps one or both parties’ managers are now referred for an investigation.  That typically comprises documented interviews with both parties and others believed to have relevant information, as well as a review of other materials, including documents, electronic communications, recordings, and physical items.

Human resources is most typically tasked with conducting these types of investigations.  In organizations with a larger HR function, there may be a dedicated employee relations function or equal employment opportunity (EEO) office to handle the investigation of matters potentially involving serious policy violations, such as the EEO or workplace violence policies.  Complaints about workplace conditions (not involving health or safety concerns) or more generalized issues of unfairness or favoritism (not based on any protected characteristic) are often looked into by the HR generalist supporting that business function.

Sometimes, though, an organization is best served by retaining someone outside the organization to investigate a workplace concern.  In my 15 years conducting workplace investigations, I have found that determining when to retain an outside investigator largely depends on four factors: conflicts of interest, sensitivity of the issue, skills and experience, and workload management.

Conflicts of Interest

CEOs/business owners, board chairs and other senior leaders can be the subject of an employee complaint reflecting a potential serious policy violation.  Or a workplace concern may involve the head of the organization’s human resources, compliance or legal function.  In each of those circumstances, the individuals within the organization who would typically be conducting a workplace investigation are being asked to look into a complaint against the people who ultimately determine the investigator’s pay and future with the organization.  The internal investigator’s independence and ability to conduct an effective investigation may be compromised in that situation.

Even if the internal investigator feels equipped to disregard the underlying power dynamics and objectively gather and evaluate the factual information, there is an overriding appearance of undue influence that may undermine the confidence of the complainant or other parties in the objectivity of the outcome.  The complainant may raise concerns about the process to coworkers, and employees may be disinclined to raise concerns internally in the future.

An outside investigator can help an organization avoid these conflict-of-interest concerns.  The outside investigator may be retained by and asked to report directly to the board, outside legal counsel, or a senior leader within the organization who is above or outside the reporting lines of the parties involved in the matter (such as reporting to the CEO or CFO on a matter involving department heads within human resources or legal).

Sensitivity of the Issue

Sometimes the nature of the concern raised warrants retaining an outside investigator.  For example, matters involving a sexual assault or a domestic violence issue that has carried into the workplace may present particular sensitivities that the internal investigations team is not experienced to handle.  A trauma-informed approach is recommended for investigating these types of matters, which involves a focus on open-ended questions, delicate probing, and an appreciation that the complainant’s account may be fragmented or disjointed but still credible.  These attributes of a trauma-informed approach are arguably best practices for any workplace investigation, but if the internal team lacks appropriate training in them, then an outside investigator may be a better option to conduct an appropriate investigation.

Skills and Experience

Smaller organizations often do not have an internal human resources function.  HR support may be provided through a professional employer organization (PEO) or may be assigned to the business owner, the head of operations or the finance head.  Or perhaps an organization does have one or more internal people responsible for human resources, but their role and experience has primarily focused on recruiting, benefits administration or HR advisory work, with little or no experience conducting workplace investigations.  In these situations, leveraging the skills and experience of an outside investigator is helpful.  Some organizations will retain an outside investigator for support on an ongoing, as-needed basis, while others may retain an outside investigator more ad hoc, if a concern has been raised where an investigation seems appropriate.

Workload Management

Finally, sometimes an internal HR or investigations team just has too much on its plate or is short one or more staff and needs additional resources on an interim basis.  In these situations, the outside investigator still offers the benefit of more independent accountability and perspective, but primarily the investigator’s value is in being able to “hit the ground running” and offer support.

Final Considerations

An experienced outside investigator can be a helpful resource to organizations in a range of situations.  It is helpful to articulate to the investigator at the outset the business issue that prompted reaching out to someone external to the organization.  If, for example, an outside investigator is being retained due to a conflict of interest, then clarifying to whom the investigator will be reporting is important to ensure there is no perpetuation of the conflict.  And if the investigator is simply an extra set of hands to manage workload, then it is important to clarify when and how the investigator will be engaged for specific matters.

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In this Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

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9

May, 2022

Consider Transparency of Outcomes from Workplace Investigations

By Tracey I. Levy

What if we were less secretive about outcomes in our workplace investigations?

Conventional wisdom, and the cautionary note I most commonly provide when conducting harassment prevention training for organizations, is that the organization will not share specifics about whether and what remedial actions are being taken following a workplace investigation of concerns of harassment, discrimination, retaliation or other inappropriate workplace behaviors.  We explain that this is out of respect for the respondent and consistent with disciplinary process.  Just as I would not tell employee A that employee B was being written up for excessive lateness, I will not tell a complainant that a respondent has been written up, denied a promotion, had their bonus cut, or all of the above based on a violation of the organization’s policies.

But does that approach still make sense?  What do we sacrifice in the process?  Post #MeToo/Black Lives Matter, this may be the time for organizations to consider doing things differently.

Demonstrating Accountability

Earlier in my career, when I was conducting investigations in-house as an employee relations specialist, my colleagues and I would periodically vent to one another about the “bad rap” that our team and the human resources function more generally had when it came to addressing employee concerns.  We often took responsive actions following workplace investigations, with a host of wide-ranging consequences for respondents. We felt we were acting appropriately to achieve the primary objective — getting the behavior to stop, and deterring that individual from doing it again.  But because we were silent about what actions were taken, complainants assumed we had done little more than pay lip service to their complaints.  We were powerless to correct employees’ misimpression, because we were adhering to the conventional wisdom of respecting the respondent’s privacy.  I used to rationalize that it only was HR’s reputation that suffered from this process. I now think the harm is broader.

Accountability is a key component of any initiative to create a more respectful workplace, one that does not tolerate harassment, discrimination or retaliation. The EEOC made that clear in its seminal 2016 report on workplace training and effective prevention of harassing behavior. On a fundamental level, organizations usually do hold employees personally accountable for their inappropriate workplace behaviors, at least following a workplace complaint and investigation. If no one is told details of the outcome, however, then the organization’s responsive actions at best serve the limited purpose of deterring that particular individual from engaging in further inappropriate conduct. There can be no broader deterrent effect absent some transparency.

Alternative Approaches

One option is for organizations periodically to provide their workforce with aggregate data on the responsive actions taken following workplace investigations.  That serves the beneficial purpose of disclosing the range of actions taken, and how frequently they occur.  The downside is that the data may not mean much without additionally disclosing how many claims were substantiated, and the types of behaviors that were found to have occurred.  Each disclosure runs the risk of raising more questions than it answers.  Particularly if the number of claims found unsubstantiated is not considered sufficiently “high” from the employees’ perspective, organizations may find the aggregate reporting is too generalized to present the desired message of a responsive leadership team.

So how about full transparency — informing the complainant in an individual investigation of the responsive action being taken by the organization, including possible disciplinary action of the respondent.  Clearly there are downsides to this approach in that it tarnishes the reputation of the respondent and may add fodder to the gossip mill, thereby making it harder for the respondent to move forward.  But there are upsides as well, in that the complainant receives specific information about how the organization has responded, and is not left to wonder or doubt the sincerity of the organization’s approach.  Also, as employees learn that responsive actions are no longer being kept confidential, the deterrent effect may be enhanced — individuals may think twice about their behavior if they know that their actions will have public consequences.

Take Time to Evaluate Options

Each alternative presents challenges and concerns, and there is no single “right” answer.  But most organizations default to keeping responsive actions confidential, without even entertaining the possibility of an alternative approach.  I invite you to consider something different, weigh the upsides and downsides of greater transparency, and do not fall into the trap of maintaining the status quo simply for the sake of being consistent with past practice.

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