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Deby Skawinski to Present at Texoma HR Legal Symposium

Join Deby Skawinski, Esq. for the Texoma HR Legal Symposium on August 2, 2024. Deby will discuss AI legal ramifications in her talk "When AI Discriminates: What to do and how to Protect Your Company." In addition, Deby will participate in brief, rotating discussions reagrding investigation pitfalls and best practices based on the information below.

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Employers know that complaints of harassment, discrimination, retaliation, and many other kinds of misconduct can and do occur at any time, and organizations must be prepared to conduct fair and impartial investigations. Objective and impartial fact-finding is a prerequisite to taking appropriate and meaningful action. An organization must know the merit of any given allegation to effectively resolve the underlying issues.

In the past 25+ years, EPS consultants have performed thousands of employee complaint investigations and are skilled in the complicated and often litigation-bound issues organizations and institutions face when an investigation is required. Our consultants have faced every type of complaint – harassment, discrimination, retaliation, and many other kinds of misconduct. Our consultants have often served as effective fact witnesses and our investigations are consistent with the guidance outlined in ISO/TS 37008. 

Four Common Investigations Pitfalls

  1. Not taking the complaint seriously. Any employee concerns raised, particularly those that allude to potential harassment or discrimination, need to be promptly investigated. Employers that choose to ignore, bury, or delay the investigation of employee complaints put themselves in a worse position down the line. Even if the complaint does not use legal buzzwords or is not filed through official channels, once management has become aware of the concerns, it is advised to fully investigate. It is also not necessary that the complaint be in writing or that the complainant identify him or herself before the situation is addressed. If future litigation reveals that the initial complaints on a matter occurred well before any action was taken, the employer may have more difficulty defending a lawsuit. Additionally, even if the complainant does not want any action to be taken, it is often the responsibility of the organization to investigate any concerns of which it is aware and to fulfill its duty to its employees under various employment laws. An investigation that is not initiated until months after concerns were raised, is already subject to criticism before it begins.
  2. Not choosing the right investigator. It is important that the right person is chosen to conduct the investigation. Sometimes the proper person can be a human resources professional or another internal employee. However, it is essential that the person conducting the investigation has been trained and is not involved in the underlying situation in any way. The investigation should not be conducted by an employee with no experience, nor should the investigator be someone who does not typically conduct investigations as part of their role. Sometimes it makes more sense to use an outside investigator to ensure neutrality and encourage participation. The hiring of an outside investigator can also highlight to employees the organization’s good faith and commitment to addressing the concern. If the concern is raised within the HR department or the legal department, it is best to retain an outside investigator. It is also helpful if the investigator has some knowledge of employment law and experience testifying in court.
  3. Making promises you are unable to keep. Many complainants will want their concerns to be kept confidential. Unfortunately, the nature of the investigation process requires investigators to report findings back to management. Investigators should not promise anyone to keep information completely confidential. Investigators can assure witnesses that the information they share will not be widely dispersed; however, there is always the caveat that information from the investigation may need to be shared for business or legal reasons. Investigators should also not promise to speak to a particular person or review a particular document in case that ends up not being an option. If a witness learns that the investigator did not keep a promise, he or she may lose confidence in the investigation process and not come forward in the future.
  4. Failing to properly document the investigation. It is important to properly document each stage of an investigation. Initially, an investigation plan should be put in place so that there is a clear direction and scope for the inquiry. The investigation plan should note relevant policies, documents and potential witnesses. The investigation plan should also reflect who is directing the investigation and whether the investigation will be conducted under the attorney-client privilege. The investigator needs to take thorough notes during interviews and retain the notes in case any questions are raised later. The conclusion of the investigation should also be documented in a report or at least a memo to the file. Even if a definitive conclusion cannot be reached, investigators should attempt to conclude what happened even if it is qualified as “more likely than not.” Proper documentation of investigations can reduce organizational risk and can improve an investigation’s accuracy and effectiveness. 

Four Articles that Illustrate Best Practices in Investigations  

When Workplace Investigations Involve Law Enforcement

In most instances, an internal investigation will not uncover illegal activity, but rather potential policy violations. On occasion, an internal investigation will reveal potential criminal activity. There are many considerations in deciding whether to involve law enforcement in a workplace matter and we examine when and how to partner with law enforcement.

Ensuring Privilege When Using an Outside Investigator

Outside investigators are skilled in asking the appropriate, probing questions and conveying the acquired facts to decision makers. One important factor to consider at the outset of an investigation is determining whether an investigation conducted by this investigator can be protected by the attorney-client privilege and therefore not discoverable in any future litigation, and if so, how?

Special Considerations in Sexual Harassment Investigations

We examine the special considerations involved in investigating sexual harassment claims while ensuring the dignity of the parties, appropriately handling the potential involvement of law enforcement, attorneys and even parents, and assessing credibility in these complex situations.

Hiring an Outside Investigator - 5 Ways to Ensure a Solid Outcome

You've never hired an outside investigator before, but the time has come. How do you confidently hire one and what can you do to ensure a solid outcome?

Introducing “A Workplace Investigator’s Toolkit”

Public, On-demand Courses, HRCI/SHRM Certified

We have taken our 25+ years of investigation experience - literally 1000's of investigations conducted - and distilled those experiences into two courses designed to build the fundamental skills of human resources investigators. Each course is HRCI and SHRM certified for one-hour PDC, is highly interactive, and allows the learner to move through the course at a pace that is conducive for them and at a place and time of their choosing.

A Workplace Investigator’s Toolkit Part 1: Investigation Fundamentals, $49

This interactive course on the fundamentals of conducting workplace investigations discusses the importance of an investigation, how to prepare for and conduct interviews, how to break down conclusory statements, and how to properly document an investigation.

Using a case study, the learner will gain practical knowledge on how to determine which witnesses to interview and how to draft objective interview questions for the Complainant, Subject, and Witnesses. The learner will also become more skilled at properly documenting an investigation, including learning strategies for effective investigation report writing.

A Workplace Investigator’s Toolkit Part 2: Investigation Challenges, $49

This interactive course builds on the fundamentals of conducting workplace investigations and discusses common challenges investigators face from managing challenging witnesses to credibility determinations. The course also explores how to recognize and interrupt investigator bias and provides practical guidance to addressing investigation challenges.  

Using a case study, the learner will gain practical tools for managing reluctant or difficult witnesses. The learner will also dig deeper into understanding how their own potential biases could impact an investigation and gain practical skills for interrupting such biases during the investigative process. Finally, the learner will also become more skilled at making credibility determinations and understanding how to weigh the different factors.

A Workplace Investigator’s Bundle: Part 1 and 2, $89