Conducting Investigations

Know More: Employment law 2.0, Employment law

The following is for information purposes, and not meant to be legal advice.

On October 8, 2006, Dana Peterson, a partner at Seyfarth Shaw, LLP gave a talk in San Francisco, CA on conducting effective workplace investigations.

Investigations usually begin with a complaint. For instance, in co-worker harassment, a company investigates a complaint because it may become liable for being on notice. Even when someone reports a policy violation without requesting an investigation, the company still needs to investigate because there is notice.

Who should investigate depends on internal and external resources. An attorney involved in investigations needs to be wary of waiving privilege should it become a witness.
When investigating, the company should be aware of privacy issues. California’s Investigative Consumer Reporting Agencies Act, effective January 1, 2002, may apply to workplace misconduct investigations not only background checks.

When preparing for an investigation, the company should know the company’s policy on the complained conduct. The purpose of the investigation is to find out policy violations. Ask witnesses open ended versus leading questions in order to gather all possible information. Independent facts are needed to corroborate whether a situation occurred.

The company should determine whether the complained and accused parties need to be separated during the investigation. The company may put the accused on paid leave without liability worries based on reputation damage because it has an obligation to conduct the investigation. If the company transfers the parties, it should obtain the consent of the parties and transfer them to comparable positions.

Witness interviews should be documented and acknowledged by the witnesses for accuracy. Interviewers need to be objective, and not identify with or console witnesses. If witnesses conflict in their stories, interviewers should conduct follow ups. Interviewers should observe body language. In reports, interviewers should not make conclusions on the law, and only comment on whether the accused violated the company’s policy. A policy violation is not necessarily a legal violation.

Devoted to Corporate Attorneys, Corporate Lawyers, and Corporate Counsel

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