February, the month when we all try to stay true to our New Year’s resolutions, is a good time to resolve not to make any investigation “blunders.” To help with that effort, we’re providing you with a top ten list of investigation mistakes. We keep these in mind when doing investigations and wanted to share them with you. Keep an eye out for deeper dives into the following topics in the months to come.
- Not investigating “hearsay” or “rumor” or not investigating because the complainant asked you not to – Once you are on notice that you may have a legal/policy violation, you must act! Even if the complainant doesn’t want you to, even if it’s just a rumor, even if the bad actor quits. Similarly, if you hear about potential misconduct through the grapevine, at the water cooler or otherwise catch wind of rumored misbehavior, do not ignore that information. While there may not be anything to the rumors, there could be a seed of truth. Furthermore, even if a rumor is unfounded, the individual about whom a rumor is spreading deserves to have the issue addressed. One consistent truth we see in our work is that these things do not go away (and often grow worse over time) without an active response. Be curious. (While curiosity killed the cat, it’s the investigator’s superpower!)
- Sitting on your hands – Once you’ve realized you need to investigate a concern; you need to get started! From the outset of an investigation, you may identify obstacles (e.g., witnesses out on leave, difficulty accessing electronic data, etc.). These, however, are almost always obstacles to completing an investigation. In almost all instances, you can get started by compiling documents and speaking to witnesses who are available. You can plan your approach, take notes on the obstacles identified, and strategize next steps. These are all investigative steps. Your notes and file should reflect them so that, down the line, you can demonstrate that you got the ball rolling (and kept it rolling as fast as reasonably possible).
- Prioritizing being done over being thorough – Don’t let #2’s emphasis on getting things started right away lead you to think you need to rush to complete the investigation. Your investigation must be both prompt and thorough. What constitutes a thorough investigation will vary widely and, therefore, what is suitably prompt will as well. So long as you’re moving the ball forward and noting the steps you are taking to keep the investigation on track, thoroughness should win the day.
- Failing to talk to comparators or former employees – There is not always a need to interview comparators, e.g., if you’re investigating certain discrete events that, on their face, constitute misconduct. However, often you will be responding to complaints of discrimination based on protected status. In most such cases, it is not enough to simply determine whether certain conduct occurred or what the work environment has been like for the complainant. Instead, you must interview comparators, preferably those who both share and don’t share the relevant protected status, to reach a finding regarding whether there has been discriminatory treatment. To thoroughly do so, you may need to talk to former employees as well. Not only will this ensure a thorough investigation, it will prevent you from first learning about these other relevant experiences during discovery.
- Building a case instead of investigating a complaint with an open mind – Whether you are conducting an internal investigation for your employer or are its litigation counsel, there’s always the risk that you may slip into building a case rather than maintaining a truly open mind. To truly be neutral requires going into the investigation with no hesitation about reaching any potential finding and remaining open to those possibilities throughout the data collection process. That can be difficult to do, especially if evidence comes in heavily on one side early in the investigation. There could be (and often is) additional, weightier evidence that comes in late in the process. You must gather data on both sides up until the end of the investigation without reaching any final judgments.
- Talking too much and/or closing off possible responses by using leading or accusatory questions – The following three words are your friend: “Tell me more.” Use a wide-open prompt like this (repeatedly, if need be) to ensure the witness is doing most of the talking and not being led by you. Use silence, as well. When a witness appears to be done talking, wait a second or two before asking your next question. You’ll be amazed at the additional information received during these openings for witnesses to talk more. Also, avoid leading or accusatory questions. This goes along with listening to the witness, saying little during interviews, and keeping an open mind. While you sometimes need to press for more information or present witnesses with contrary data, you should always do that from a perspective of curiosity and not judgment. (“Help me understand . . .”; “tell me more about . . .”; etc.).
- Not getting facts – letting the witness characterize events – Detailed facts rule the day. As investigators, hearing someone say, “he was drunk,” isn’t nearly as relevant and informative as, “I came across him sleeping in the supply closet. His mouth was open, and he was drooling. When I dropped a box of files he didn’t wake up. He reeked of bourbon.” This brings us back to prompting witnesses to talk more. After the witness tells you the person was drunk, make sure you have them “tell [you] more.” And more, and more!
- Promising confidentiality – Don’t do it. An investigator should not promise First, the employer is likely investigating in order to know what happened and address any issues in the workplace. Responding and remedying misconduct may require that individuals be identified. Additionally, to provide a respondent with a full and fair opportunity to respond to allegations, their source may need to be identified. Of course, if there is ever litigation, it’s highly likely that everything will be revealed. Finally, even if none of these situations apply, you can’t control what others talk about or what people piece together on their own.
- Checking your other senses – including common sense – at the door – As an investigator, you need to strike a balance, being open to possibilities and the information witnesses are providing while always “testing” what you hear against other data. Testing may mean seeing or hearing for yourself. For example, if a witness says they heard a conversation from across a room, you may need to see where she sits and what the volume is like at the relevant time of day. Can a witness have seen what they claim to have seen? Go check for yourself. While workplace investigations may not include all the steps taken in the investigation of a serious crime or involve extended surveillance, they are still investigations. You should not necessarily limit yourself to simply what you are told and what has been written in emails. Use your common sense regarding what data can (and should) be tested.
- Relying too much (or at all!) on “demeanor” evidence – Don’t mistake using “common sense” with placing weight on witness demeanor. Many misconceptions have formed about what can be gleaned from somebody’s demeanor during an interview. In short, demeanor tells you little to nothing. Even if it might reflect something relevant, you’ll be hard pressed to accurately identify what that might be. The simplest example is a respondent who is visibly nervous. One can imagine an investigator citing that as evidence of a guilty conscience. But, a respondent just as likely could be nervous because they are being investigated for something they did not do (and are thinking about what the consequences might be for their career, their reputation, and their families). A sweating witness? Maybe they sweat all the time. Maybe it’s their stress response to being asked questions about a difficult subject. An agitated witness? Maybe they were nearly in an accident driving into work that morning or are waiting on medical test results for a child.
In sum, be curious and open throughout. And, if you need anything, we’re here to help.