Category Archives: Investigations

Employers May Require Confidentiality During Investigations

In a decision released today, the National Labor Relations Board reversed prior law concerning confidentiality during open workplace investigations. Commenting on the employer rules in the case, the majority wrote:

The rules at issue do not broadly prohibit employees from discussing either discipline or incidents that could result in discipline. Rather, they narrowly require that employees not discuss investigations of such incidents or interviews conducted in the course of an investigation. Employees not involved in an investigation are free to discuss such incidents without limitation, and employees who are involved may also discuss them, provided they do not disclose information they either learned or provided in the course of the investigation. Further, the rules do not restrict employees from discussing workplace issues generally or limit the employees’ ability to discuss disciplinary policies and procedures. Finally, we note that the rules do not prohibit a union-represented employee from requesting the help of a union representative during such an investigation (if the Respondent’s employees were to unionize), pursuant to NLRB v. J. Weingarten, 420 U.S. 251, 267 (1975).

Apogee Retail LLC d/b/a Unique Thrift Store, 368 N.L.R.B. No. 144 (2019), slip op. at 8. The full decision can be found at this link.

Investigating Employee Complaints: Avoiding Common Missteps

An employee has come to you with a complaint of possible illegal or inappropriate conduct. You have considered the important question, “If everything this employee alleged is true, what would we do?” and answered that the response would be significant enough that facts are needed (in other words, you can’t just do some training or send out a general warning to address it.) Now you must investigate.

Investigating a complaint should be done with an open mind, a commitment of a concentrated period of time and some good forethought. The goal of an investigation is to determine what happened. It will, hopefully, result in good information upon which the organization can base good decisions.

As simple and straightforward as an investigation might seem, the most common missteps are also the most damaging to the efficiency and effectiveness of investigations. This article will examine the most common missteps by investigators and provide some tips on good investigative practice.

Know what you are investigating

A good investigation starts with an excellent intake process. Someone has raised an issue, and someone has determined that were the issues substantially as reported it might be a violation of policy or law. The investigation, then, should determine whether the behavior alleged transpired, what the context of the behavior was, if relevant, and other information that would clarify the event or events in question. (One example of such additional, clarifying information is material that is necessary to assess the credibility of important but conflicting witnesses.) This is called the “scope” of your investigation, and you should maintain a clear line of sight to that “scope” throughout. This means:

  • Avoid “fishing” for unrelated facts or issues.
  • When new allegations are made, determine whether they are related to the scope of the investigation, and, if not, put them aside.
  • Remember that you are investigating events, not people. Focus on what happened.

There is no such thing as too much planning

Inexperienced investigators tend to “dive in” to an investigation, following their nose from witness to witness. One good way to plan your investigation is to list those individuals that you think you want to speak with and make a note about what information you think that they will be able to provide. You might also create a list of “investigative questions.” These are questions you need answered in order to complete the investigation. For instance, if there is an allegation of theft from a drawer, some investigative questions might be “who had access to the drawer?” “Have there been similar thefts?” and “What was the time period during which the theft took place?” These questions about context, circumstance and facts will help you plan to get the information you need.

  • Make a plan and revise it as necessary.
  • Consider logistical or practical things that might interfere with your investigation.
  • Make sure that the right people have been notified of a need to interview people.

Absolutely, without exception, apply “need to know” to your investigations

Investigations are truly bound by the simple adage that “loose lips sink ships.” The rule you must apply is that NO ONE who does not need information gets the information. That means standing up to managers who feel they are entitled to details of the allegations, or who wish “updates” during the course of the investigation. While managers or executives may feel that the investigative status is their business, discussing the investigation with them could compromise, or appear to compromise, your neutrality. If someone does not need the information to advance the investigation, they should not be provided any details. Most of the time, managers will need to know only allegations that call for an immediate response. Witnesses and respondents need to know enough to provide complete statements, but no more than that.

  • Make sure that complainants know that the respondent is likely to know who they are, since they have the opportunity to respond to the specific allegations against them.
  • Never provide information that does not immediately contribute to the investigation.
  • Tell witnesses that, if they are asked about the subject of the interview, they should respond by stating, “I have been instructed not to discuss it.”

Take notes that help you remember what was said

Don’t rely on written statements without also noting the questions you asked and any instructions that you gave. It is perfectly okay to “clean up” your notes, as long as you maintain the original notes in your file. The notes are a tool for you, and should allow you to reconstruct what was said to you in the months following the interview.

  • There is no one right way to take notes. The hallmark of a good note taker is that they can reconstruct what was said with a high degree of accuracy.
  • Do not put subjective information in your notes. Use a separate document to make credibility observations.

Never skip the response

No matter how clearly it appears that the accused has behaved badly, never skip a responsive interview. Too many “smoking guns” have turned out to be mere illusions once all of the facts were in. There is simply no down side to letting someone give you their perspective on what happened, and you could avoid wrongful punitive responses by taking the time to offer due process.

Doing investigations is complex work. In highly complicated or politically-charged complaints, consider using outside investigators. The matrix accompanying this article can assist in the process of deciding whether to use outside resources.

Contributed by Fran Sepler

Do You Need an Outside Investigator?

No one can absolutely answer that question for you, but here is a tool to help you make your decision.

Look at the matter

(1 point)

(2 points)

(3 points)

The matter to be investigated is

Simple, involving two parties and one or two

Moderate in Complexity, involving more than
two parties or multiple incidents

High in complexity, involving multiple
parties and multiple incidents, or
allegations of hostile environment

The person(s) accused of misconduct

Are non managerial and at the same rank as
the complainant

Are middle management
higher in rank than the complainant

Are senior managers or executives

The complaints involve

Inappropriate language, jokes or simple

A combination of inappropriate language and
multiple acts of misconduct

Extreme racial, sexual or
threatening/harassing behavior

The person to do the investigating

Is extremely experienced and confident

Has some experience, but is uncertain about
the best way to proceed

Is inexperienced OR is in a reporting
relationship to a party in the investigation

1-4: Almost certainly manageable internally
5-9: Consider using outside investigator
10: Recommend outside investigator

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