Conducting an Internal Investigation:

What Every Supervisor Needs to Know

Presented by: Mariah L. Passarelli, Esq.

mariah.passarelli@bipc.com

412.562.8872

Common Causes for Investigations

Suspected use of controlled substances

Allegations of discrimination and/or harassment

Harm to property/theft

Misconduct

Safety concerns

Goals of Investigations

Did the behavior occur?

What is the appropriate discipline, if

any?

How can we reduce damages?

How can we limit the risk of liability in

the future?

Can we prevent a repeat occurrence?

The Need for Objectivity

The investigation should be conducted

from an objective, third-party approach

Unproven suspicions and assumptions

should be discarded

All relevant material facts should be

investigated

Follow-up on conflicting information

Be thorough, but not crazy…

Legal Pitfalls Associated with Investigations

Violation of Labor Agreement

Discrimination/Harassment Claims

Retaliation Claims

Negligent Hiring/Retention

False Imprisonment

Employee Privacy Concerns

Defamation/Libel

Conducting The Investigation

What skills and abilities are important?

▫ Ability to understand business purpose of investigation and potential issues it may raise

▫ Knowledge of company policies, procedures, and practices

▫ Knowledge of applicable legal issues

▫ Interviewing skills

▫ Credibility/impartiality

▫ Effectiveness as potential witness

▫ Ability to take thorough, accurate notes

▫ Ability to maintain confidentiality

▫ Status as attorney or independent third party

Step 1: “Strategery”

Prepare Investigation Strategy

▫ Order of interviews (Complainant-first, alleged wrongdoer-next or last?)

▫ Determine what will be said to employees and outsiders

▫ Avoid group interviews

▫ Document

Who should you interview?

Identify Potential Witnesses

▫ Accuser (or alleged victim, if other than accuser)

▫ Accused

▫ Coworkers who work in area where alleged misconduct occurred

▫ Past and present supervisors of the accuser and accused

▫ Witnesses

▫ Authors of relevant documents

▫ Others, as identified

What Documents should you review?

Identify Documents ▫ Rules, policies, procedures

▫ Memoranda or notes about incident

▫ Time cards

▫ Expense reports and receipts

▫ Communications to employees

▫ Prior complaints

▫ Employees’ personnel files

▫ Managers’ notes and files

▫ Sample work of employees and others for comparison

▫ Security videos/searches/e-mails

Action Items

Prepare Outline of Topics and Questions

Be a good listener

Goal is to get to the Who, What, Where, When, Why and How of the situation or event

Are there other people who should be interviewed?

Should you circle back and re-interview someone you have already spoken with in light of new information?

Keep Your Goal in Mind

Goal of investigation should be for each act and each statement determine:

▫ Did this occur?

▫ When did this occur?

▫ Where did this occur?

▫ Who was present when this occurred?

▫ Exactly what happened or exactly what was said?

▫ Was anyone else present during those incidents or conversations? If so, who was present for each of them?

How to Effectively Interview Witnesses (Cont.)

Purpose of Investigative Interview

▫ Obtain the truth and preserve dignity

and respect of interviewee

▫ Understand the interviewee

▫ Develop working hypothesis

▫ Determine credibility of the interviewee

▫ Document factual information

Other Interview Considerations

Consider Weingarten Rights

Use a non-restrictive environment

Have 2 people present for interviews

▫ Ensures accurate notes

▫ Witness to corroborate statements made

What to do With a Complaint / Complainer

▫ Take notes

▫ Request that the complaint be in writing

▫ If individual refuses to put complaint in writing, draft your understanding of the complaint and have the complainant verify its accuracy and sign

▫ Do not promise confidentiality; confirm that information will be shared with those who have a need to know

The Interview No-Fly Zone

▫ Types of questions that should be

avoided:

– Loaded, e.g. “Somebody stole merchandise

yesterday and you were the only one here.”

– Accusatory, e.g. “Just tell the truth, you stole

the merchandise, didn’t you?”

– Multiple, e.g. “If you didn’t steal the

merchandise, then who did? Why would

you do something like that.” (compound)

Get the facts…

▫ Developing the Facts

– Start with broad open-ended questions, e.g., “What

happened on your shift yesterday?” or “Did

anything unusual happen?” Then work your way

towards narrower, yes/no questions.

– Ask follow up questions, “What did you mean by . .

.?” “What made you believe . . .?” “What did you

mean by your use of the word . . . .?”

Don’t abandon your people skills

▫ Be Patient

– Give witness time to respond

– Don’t rush – allow time to think and form answers

– Be respectful of individual styles

– Use silence

Use common sense

Try to save unfriendly or embarrassing questions until the

end; beginning with hostile questions usually causes the

interviewee to be defensive

Neither give the impression that you disbelieve any witness

nor express an opinion as to whether something inappropriate

occurred during the fact-gathering process

Confirm witness is giving you first hand information and if not,

who does have first hand knowledge.

Wrapping up the interview

Be a “closer”: “Is there anything that I have overlooked?” “Is there anything else we ought to know about?”

Warn against any retaliatory acts

What are you doing to document the statement?

The inevitable jerk

The Hostile Witness (or the one who doesn’t

want to cooperate)

▫ Accept the hostility

▫ Document it

▫ Make sure company policy includes a

provision that requires employees to

cooperate in any internal investigation

Investigation Findings

Consider factors such as evasiveness, contradictions in

statements, blushing, or other facial expressions, potential

signs of anxiety such as shaking, perspiration, defensiveness

and other demeanor evidence

Generally, no tape recording because it frightens witnesses

If wish to use a recording device, check local laws and obtain

consent on the record

Remember that not all complaints require a full-blown

investigation; once you start the procedure, do it correctly

Outcomes

Generally, five possibilities

▫ The event happened

▫ More likely than not that the event did occur,

for the most-part, as described

▫ More likely than not that the event did not

occur to any reasonable extent as described

▫ The event did not happen

▫ Non-finding

Don’t be trigger-happy…

Does your conclusion have a documented basis?

Consider Preparing Interview Summary

▫ Essential information

– Name of attendees and

– Date, time, location of meeting

▫ Write factually detailed chronology as

provided by the interviewee (using the same

structured interviewing questions)

Documentation

Good documentation is very important. ▫ Are your notes legible?

▫ Did document who did the interviewing, who was interviewed, who was present for the interview, date/time that the interview occurred?

▫ Did you gather any relevant documents identified during the investigation?

▫ Did you document outcome/discipline/resolution? Who were the decision-makers?

Useful now; Useful later

Create separate file for investigation

The following documents should be included in the

investigation file:

▫ All complaints

▫ Documentation on actions taken-interviews, documents

obtained, etc.

▫ All communications to and from witnesses and complainants

▫ Interview notes

▫ All draft and final witness statements (with dates, authors,

witnesses and subjects clearly indicated)

All related documents should be included

▫ All documents which establish or refute the

allegations

▫ Relevant physical evidence - surveillance,

emails, photos, product samples

▫ Investigator’s report

▫ Documents reflecting notification of

investigation results and remedial action

Summary

Investigate Promptly

When observed conduct constitutes

actionable event, do not wait for complaint

to be lodged

Do not allow your internal investigation to

undermine reasonable avenue for

complaints

Follow Through

Know when to jump ship…

Should a severance package be offered?

Avoiding litigation in this area:

▫ No difference re: severance package along

protected class lines

▫ Proper language for waiving ADEA claims

▫ What are you doing about UC benefits?

Where do we go from here?

You can use an attorney to conduct an

investigation (good idea if accused is high-

management or HR)

Does a policy or procedure need

addressed to prevent a repeat?

Does your workforce need training?

Do you have the documentation in place to

facilitate the investigation?

Let us help you fireproof your business.

Onsite training on employment law “hot spots”

Webinars for multi-office participation

Strategic development and planning

Partnership with your onsite HR professionals

and supervisors for real-time problem-solving

Education programs with real-life examples so

your employees are armed with the know-how

they need