Internal Investigations

What do I do when an employee complains?

Disagreements occur in the smallest of organizations and typically employees will work them out among themselves. However, there are times when the seriousness of the disagreement or alleged behavior (discrimination, harassment, theft, drug use, etc.) has to be escalated to a member of management to investigate and manage the incident.

In many organizations, the person tasked with conducting the investigation is the HR Manager/Director. However, in smaller organizations, the appropriate person to conduct the investigation may be the General Manager, Executive Director, Controller, or someone of similar authority within the organization.

Regardless of the size of your organization or who is responsible for conducting the investigation, it’s important that you adopt consistent investigation procedures and that you begin the investigation as soon as possible (within 24-48 hours) after receiving the complaint.

Preparing for the discussions that will occur during the course of the investigation will enable you to adopt consistent questions of all witnesses and implement consistent practices (such as documenting discussions with each person you speak with) so that there is a logical flow of information that can be reviewed at the end of the investigation process so that decisions and recommendations can be made regarding how the incident will be resolved.

  1. Identify those individuals who will need to be interviewed. (complainant, accused, witnesses, any other third parties that may have relevant information)
  2. Decide which questions to ask. (What happened; who was involved and/or who may have witnessed the incident; when did it happen (dates and times); how did it happen; and why do you think it happened?)
  3. Review pertinent documents and information (policies, procedures, instructions, personnel files of complainant and accused, etc.) that are relevant to the incident.
  4. Review any footage from security cameras used in your facility that may be relevant to the investigation.
  5. Determine when and in what order the interviews should be conducted.
  6. Identify or create forms to ensure relevant statements and information are captured during the interview.

When conducting your interviews, be direct by telling the interviewee why you need to talk with them. For example:

“Mary, it’s my responsibility to investigate an incident that happened yesterday regarding an individual being called ‘Methuselah’ and I need to ask you some questions about the situation.”

Let the person know you will be documenting the discussion. “I’m going to take notes during our discussion so that I have accurate information to use in compiling a proper report of my investigation.”

Encourage the individual to submit a statement to you in writing explaining what they saw and/or overheard.

Use a consistent core of questions that will be asked of all interviewees and be prepared to ask follow-up questions based on their response so that you can later compare answers. In the above example, you might ask all interviewees, have you ever heard of anyone in your department being referred to as Methuselah? If the employee says yes, follow-up questions would be “who said it”, “who was that individual referring to”, “when did you hear it”, and “did anyone else observe this comment?” If someone else observed the comment, ask who that person(s) is so that you can interview him/her.

Take notes during the interview, but keep your notepad turned away from the interviewee so s/he can’t read your notes. Keep your comments as precise and objective as possible and try to avoid subjective comments. Write your comments in as professional a manner as possible.

Also, record the behavior of the interviewee. For example, if Mary avoided eye contact, stammered when responding or otherwise didn’t appear confident in her responses, document those observations. Don’t over-interpret these observations but rather use them as a tool to help you understand the meaning of what they are trying to tell you.

Be prepared for bizarre or hostile behavior…especially from the person accused of instigating the incident (who is innocent until proven guilty). If they start accusing you of harassing them, for example, stop the current interview and immediately respond to the challenge. Calmly deny the accusation and ask for more information. For example, if Mary says you’re harassing her, state “That’s not true. Mary, I’m not harassing you and am interested in hearing what you have to say about the incident that occurred yesterday.” Record any response she gives and then tell her “we need to resume our interview and I need you to answer some more questions.” If the interviewee’s behavior becomes too bizarre or overly emotional, end the interview with “Mary, it’s difficult for me to continue when you are feeling as strongly as you do and I’m going to suspend our interview for now. I’ll contact you tomorrow about what we should do next. Thank you.”

Close the interview (presuming it didn’t already end due to bizarre behavior) by thanking the interviewee for answering your questions. Don’t promise confidentiality to any interviewees. But do state that you will provide the information they’ve shared with you only to those who have a need to know and in order for you to conduct the investigation.
You’ll notice that this article didn’t recommend that you tell the individuals you are interviewing not to talk about this with anyone. The interviewees weren’t told to keep this information confidential. That is because the National Labor Relations Board has determined that having a blanket rule that requires employees to maintain the confidentiality of an investigation could infringe on their rights under the National Labor Relations Act. If the employer decides that in order to protect the integrity of its investigation that it must impose a requirement that the individual maintain the confidence of their role in the investigation, it is permitted to do so. However, that is a discussion for the employer to have with its employment law attorney before deciding to impose such a restriction.

Depending on the seriousness of the incident, it may be prudent to consult with an attorney before you begin your interviews. The attorney can direct you on how to approach the investigation and provide the company with attorney-client privilege to protect the company.

Once you’ve analyzed your interview notes and other documents you’ve gathered you will be able to make a decision regarding the outcome and begin writing your report. Once the report is written, it should be maintained in a confidential file that is available only on a need-to-know basis. You should tell the complainant the results of your investigation after you have discussed them and taken appropriate disciplinary action (if any) toward the accused.

The final step in any investigation is to reflect on what steps the company can take steps to prevent such incidents from occurring in the future.

EAF responds to hundreds of hotline calls and emails monthly. We would be happy to answer any interesting questions you may have too! Contacts us at [email protected] or 407.260.6556.

CLICK HERE to join EAF now!

Follow EAF on Social Media!