Your Pool of Witnesses May be Bigger than You Think!

Part Four in our Ten-Part Series on Investigation Blunders to Avoid 

Last month, we emphasized being thorough over being “done.”  Being thorough often requires expanding the pool of witnesses beyond the most obvious or accessible.  In other words, don’t forget comparators and former employees.

Let’s start with comparators.  Of course, you’ll seek to interview the complainant, the respondent, and those who were directly involved in or who witnessed the relevant conduct.  But, depending on the nature of your claim, you may also need to evaluate the experience of comparators.  This will come up in certain discrimination cases and is an elemental feature of others, e.g., pay equity cases.  While collecting evidence on comparators may not always require you to interview them, be open to that possibility and document your decision making regardless of the approach you might take.

Turning to former employees, just because somebody is no longer easy to interview doesn’t mean you need not try.  Ask yourself: “Would I interview this person if they were still an employee?”  If the answer is “yes,” you should try to interview them.  Don’t assume you won’t be able to get former employees to speak with you.  First, you should make the effort and document that you did so, demonstrating that you did not cut corners in collecting evidence.  Second, in our experience, former employees are often willing to cooperate and may be less worried about retaliation, freeing them to be more open about what they know.

In short, whether it’s thinking beyond the specific conduct alleged or beyond the walls of your building, be thoughtful and thorough about your pool of witnesses.

Avoid the Following Investigation Blunders
In February we provided you with an overview of “Investigation Blunders” to avoid in 2020 (click here).  Over the rest of the year, we will be highlighting each in turn.

1.Not investigating “hearsay” or “rumor” or not investigating because the complainant asked you not to
2.Sitting on your hands
3.Prioritizing being done over being thorough
4.Failing to talk to comparators or former employees
5.Building a case instead of investigating a complaint with an open mind
6.Talking too much and/or closing off possible responses by using leading or accusatory questions
7.Not getting facts – letting the witness characterize events
8.Promising confidentiality
9.Checking your other senses – including common sense – at the door
10.Relying too much (or at all!) on “demeanor” evidence