Investigating Incidents within Ones Company by Interviewing Personnel - Case Study Example

Name Tutor Course Date Investigating incidents within One´s Company by interviewing personnel Introduction Employers are often required to carry out investigations when there is some information that one of the employees has taken part in workplace delinquency. There are several instances that call for an investigation and they include, harassment complaints, discrimination at workplace, accidents, and suspicions of unlawful conduct or behaviors that violate organizational policy. The way these investigations are carried out and conducted can have a major effect on any future litigation resulting from that specific incident as well as resulting from other incidents within the same workplace (Lisa 8-10). Irrespective of whether the investigation is about sexual harassment claims, theft, injury, the same principles are applied. In regard to interviewing of the complainants and witnesses, the interviews involving the investigation are supposed to start immediately. Since things are easily forgotten and also because it is important to carry out the investigations fast, the investigations ought to begin the day the incident takes place or a day after. More importantly, it is advisable to start investigations instantly because any delays can be seen as lack of interest or will to investigate and could have an effect on the final defense of an ensuing lawsuit (Lisa 25). According to investigation principles, there is a specific person who is supposed to carry out the investigation. In case the investigation is to be carried out in-house, it ought to be carried out by an HR professional or a person who has proficient knowledge regarding the business area being investigated and has experience with HR matters. It is not appropriate to conduct in-house counsel interviews since in case the employer later wants to refer to the investigation in its defense of an ensuing lawsuit, the lawyer-client privilege can be relinquished with respect to each and every communication made to the lawyer. Moreover, it is essential for the investigator to make consultations with an in-house or external lawyer to make sure that the investigation is being handled appropriately and that all pertinent legal matters have been taken into consideration (Delpo 26-28). In regard to the persons to be interviewed, the investigator is supposed to interview the complainant or the person who reported the matter, the person purportedly responsible for the crime/misconduct, the supervisors for both the complainant and the perpetrator as well as any witnesses who the complainant and accused person have identified or any other person who is being linked to the supposedly misconduct or anyone who is being identified to have seen the misconduct taking place (Conte 35-36). The investigator is supposed to make promises of non-retaliation during the entire investigation. Therefore, it is vital for the investigator to inform any complainant and also each and every interviewee involved in the case that the company will not retaliate against them in any manner just because they cooperated in the investigation (Lisa 112-122). Promises of confidentiality should be looked into. Several workers who are questioned during the investigation always agree to give any relevant information only if they are guaranteed that the information they give as well as their identity will not be revealed. So many employers/investigators guarantee those offering information that their identity and also what they say will be confidential without knowing that this can be lawfully not possible to honor that request. In such a case, the organization might be forced to depend on that employee’s testimony in case the complaint later results into a legal case against the investigator for failing to make investigations and also take the corrective action. As a result, it is more practical for the investigators to inform any employee being interviewed during the investigation that the information they give will be kept confident as much as possible and that information will only be availed to people who critically need the information. It is also important to prepare the interviewer before the investigation (Conte 45-48). The interview ought to be thorough and this means that the investigator is supposed to investigate the complainant in addition to all witnesses thought to be having information regarding the incident being investigated. Detailed information should be taken during the interview although tape recording should be avoided since it tends to make the interviewers uncomfortable and also the recorded information may be subpoenaed and reveal details not relevant to the company’s legal position. The person interviewing should make sure his personal interpretations during the interview are not part of the written record since has the likelihood of rendering the entire investigation process impartial and it might result into interviewees later disowning the recordings since they believe that those were not their words (Conte 68). During the interview of the supposedly perpetrator, it is always important to acknowledge that the perpetrator is innocent until all the applicable proof has been acquired. Below questions are basically important when interviewing those accused of misconduct: does the accused person own up or refute that what he/she is accused of actually took place? Does the accused have any knowledge about the allegations? Does the accused person admit that he/she has some link between the supposedly wrongdoing and his/her actual behavior? What exactly happened? Is there anybody else who witnessed the accuser’s account of events? Is there any evidence showing that someone might have fabricated all allegations about the accused? In case the accusation is about an action that irrefutably took place, for example vandalism or theft and the person responsible is unknown, does the accused person have an alibi? If the investigations shows that the accused undeniably is responsible for what he/she is being accused; was he/she incited and are there facts that may alleviate the accused person’ s responsibility? Is there any fact or information that the accused person believes that the investigators as well as the employer should put into consideration when determining what took place and what the consequences could be? (Lisa 45-46). The investigator is supposed to review all relevant documents. This is because reviewing pertinent personal documents can provide further information and also insights about the complainant, the accused person and in some level the witnesses; this is valuable to the entire investigation. For example, if the investigations show that a sexual harassment took place, it is important to get to know if the accused person has been disciplined for the improper conduct. Any further review of the documents depends on the nature of the complaint or matter and the documents may include performance records, computer files, emails, products records, usage of the internet and such records. In some instances, the investigator might be required to examine the area where the incident took place personally (Delpo 12-15). What’s more, the investigator should always make sure that the investigative file is properly maintained. All the materials used in the investigation should not be kept in the accused or complainant’s personnel file. The materials used in investigation should be kept in different investigation records which only the HR or the organization’s lawyers have access to. Nevertheless, any corrective action issued resulting from the investigation should be filed in the accused person’s file (Marjorie 12-14). The verdict as well as the investigation materials should be disclosed only to the appropriate or authorized parties. Any disclosure ought to be confined if possible to persons within the workplace; otherwise the accused person can sue the investigator/employer for common law torts like defamation, public disclosure of private information or even slander. When it comes to utilization of polygraph examinations, the law is against the investigators requiring the alleged perpetrators to take polygraph examinations. Nevertheless, the law allows the investigator to request the accused persons to take polygraph examinations in case the current investigation is about economic loss or the organization has been injured. Polygraph test can also be carried out if the accused person accessed the property being investigated and also if the employer/investigator is absolutely sure that the accused person is responsible for the incident or the activity being investigated. Economic loss to a company includes, theft, fraud, stealing of trade secrets/confidential business information or sabotage. Before the alleged perpetrator takes a polygraph test during the investigation, the investigator/employer should provide him/her with a written statement informing him/her regarding the incident being investigated and why the person is being examined. The statement should give the employer’s loss, how the accused person accessed the lost or damaged property as well as the considerable suspicion of the employer that the accused person participated in the incident. The statement should have a signature of employer’s authorized agent and the alleged perpetrator should be provided with it forty eight hours before the examination (Cynthia 24-28). Before carrying out a polygraph test, the accused should be given and should sign a written notice notifying the employer that his/her employment does not in any way require him/her to take the test and that any statement made during the testing can be used as an evidence against him/her by the employer, exam limitations, the accused person’s legal rights as well as the remedies under the law in case the examination is not carried out according to the law and also the legal rights of the employer under the law. Furthermore, prior to polygraph test, the alleged perpetrator should be offered a chance to analyze all the questions that will be asked. The accused person should also be told of his/her right to end the examination anytime. The test should not take more than ninety minutes, starting from when the assessor informs the accused person of the nature and aspects of the test and ending when the assessor explains the ensuing outcome to the alleged perpetrator (Melvin 56-62). During workplace searches, organizations have policy authorizing them to carry out workplace searches. Generally, the law permits private employers to search the desks, vehicles and also lunch boxes of the employees inside their property. The law also authorizes the employers to discharge any employee who does not agree to such searches. Nevertheless, if the organization allows the employees to lock their desks, the employees can sue the employer for invading their privacy in case the employer requests to search their personal effects in the locker. Consequently, the investigator is supposed to secure a written consent from the employees in order to search their lockers as this will rebut any claims from the employees of their privacy being invaded. Workplace searches by public employees can be prohibited or limited by the constitution (Melvin 64). When conducting a search for an employee, there are basic guidelines that should be followed. These guidelines offer the employer/investigator with some protective measures against likely grievances and lawsuits and they include: the investigator should first obtain consent from the employee before carrying out the search. The search ought not to be intrusive. The investigators should avoid strip searches as much as possible since it is the most dangerous form of search. The searches are not supposed to be discriminatory in any manner, for instance searching just minority employees is not advisable. It is also advisable that the investigator gets more than one employer representatives during the search and also practical measures should be used in the search, for instance, women should be searched by female supervisors and vice versa. Personal property should not be confiscated and the investigator should not threaten or use force against any employee (Jonah 68-70). It is also sensible to physically prevent any employee from leaving the search room. In case an unlawful item is discovered during the search, one should not move or interfere with it but should contact the police immediately. Moreover, the outcome regarding the search should be kept private and when searching the employees’ mails, mails marked as “personal” should not be opened. It is also advisable for the investigator to get legal advice before carrying out the search. Before the searching any employee, the investigator should be certain that he/she can explain the reason and the time of the search and also the one authorizing the search should be sure that the employee has materials relating to the misconduct at work (Ronald 26-28). After receiving the complaint, conducting the interviews and reviewing the relevant materials; after consulting the lawyers and completing the investigation process, the relevant policies should be reviewed. This means that even though the investigator knows the relevant organizational policies, he/she should perform another review of the policies applicable to the matters relating the investigations. The investigator should analyze the information effectively implying that the investigation should be completed and finished as fast as possible. This shows the significance of the investigation to everyone involved. The investigation, its results and also the conclusions reached should be documented. On the other hand, it is noteworthy that any written document prepared during the investigation becomes a key exhibit in any litigation that might be filed by the complainant, the accused, the witness, or the supervisor and it is therefore advisable that the investigator is careful with what she/he writes (Carter 135). While documenting investigation details, the investigator should avoid stating verdicts that consist of terms like, misconduct, prejudice or harassment. Instead, one ought to use terms such as, policy violation, unsuitable or unprofessional. For instance, it is extremely hard for the company’s lawyer to dispute that a given wrongdoing never constituted harassment if the investigator documented his/her conclusion that the misconduct involved harassment. In case the company lawyer requires the report, the investigator is required to place in prominent letters at the top of every page showing that the report is specifically meant for the lawyer. Before the investigator finalizes the investigation report, he/she should ensure that a professional HR who never participated in the investigation reviews the investigation as well as the final report to make sure that the document is perfect (Clare 24-26). A prompt and suitable corrective action should be taken when the investigation disclose a conduct violating the organizational workplace or an illegal conduct. When taking the appropriate corrective action, it is important to make sure that policies are adhered to and also the case is treated in a similar manner with similar cases. Even if the investigation’s results are uncertain, the complainant and the accused person should be reminded of the relevant policies, comprising of disciplinary action for unsuitable act and any complaint mechanisms. Depending on the misconduct or the severity of the accusations, the employer is supposed to re-communicate the proper policies to the relevant workforce. The investigator should inform the complaint that a complete investigation was carried out and that suitable corrective action has been employed. However, the complainant needs not to be informed of the concrete conclusions resulting from the investigation or the corrective action. It is advisable to ensure that a follow-up is carried out after the investigation to ensure that there are no further problems or effects from the complainant and investigation (Lisa 55). When carrying out an investigation within a unionized workplace, numerous agreements allow employers to discharge union workers merely for “just cause”. To determine if the work-related wrongdoing suits the “just cause” standard, it is necessary to assess the efficacy and evenhandedness of the investigation. After the investigation, evidence should be provided to show that the accused persons actually violated a rule before a disciplinary measure is taken. If the evident clearly shows that the grievant is guilty, he/she should be questioned as this will assist the investigator to unearth the reasons behind him/her violating the rules. More so, questioning the grievant is likely to strengthen the position of the employer during arbitration. Other witnesses should be questioned as this will strengthen the evidence of the misconduct. Additionally, questioning the grievant makes the arbitrator to believe that the investigation was comprehensive and that all facts were taken into consideration (John 25-26). The investigator ought not to dismiss the value of any physical or documentary proof that maybe helpful regarding the incidents. If physical, documentary or medical proof is not availed or is lost during the investigation, in case of a lawsuit or arbitration, the arbitrator can rule that the investigation was not complete and the investigation’s outcomes less trustworthy and hence this results into the arbitrator sustaining the grievance (John 28). Disciplinary action should only be taken after investigations have been conducted. This is because an investigation assists the employer in collecting the required facts and the employees get to know that the investigator is acting in good faith and plans to be fair. Secondly, in case the accused person presents facts that outweigh investigators outcome, this will obviously weaken the case. Besides, if a disciplinary action is taken before a timely investigation is carried out and during arbitration the alleged perpetrator ends up winning the case, the employer will end up paying the accused significantly for the damages and all and this can be avoided by conducting a thorough investigation (Robert 88-90). According to arbitrators, the suspected persons should cooperate when the investigation is being conducted. The suspected employee should also answer all questions to shed more light. Furthermore, the cooperation of the alleged perpetrator might be valuable in identifying other employees who haven’t been suspected but still were involved in the misconduct. The investigations should only involve work-related misconduct and this means that the investigator should not pry into the alleged perpetrator’s private life. The investigator is supposed to be always ready to give precise reasons justifying why the employees are being questioned, searched or examined (Peter 36-38). In case the accused employees do not cooperate with an investigation that has been conducted effectively, various consequences might ensue. One, this will be perceived as an indirect proof that the accused persons are guilty. As a result, the investigator is supposed to record all instances that the alleged perpetrator refuses to cooperate as well as any reasons for refusing to cooperate. In notable cases, arbitrators have supported the right of the management to discipline and also fire suspected or any employee who fails to cooperate in a practically conducted investigation. In a nutshell, employees who may refuse to cooperate during a convincing investigation may be further accused of insubordination since the employer has the right of investigating any work-related wrongdoing because such investigations are fundamental in business operations (Ferraro 24-26). When it comes to violation remedies, most arbitrators have sustained grievances in instances where an employee was disciplined for refusing to be interviewed without any representation under the assumption that an employee should not be disciplined for emphasizing his/her protected rights under a collective bargaining contract (George 12). Nonetheless, this does not imply that an employee is not supposed to be disciplined for refusing to report to the manager’s office as required, maybe for a discussion in an instance where discipline will not be concerned (Narvell 25). What’s more, some arbitrators argues that even if an alleged employee is denied his/her Weingarten rights, in case the employer proves that the employee took part in the alleged misconduct, without depending on the information gotten in employee’s interview during the investigation, a grievance is supposed to be denied. Nevertheless, a lot of arbitrators have sustained grievances and as a result employers have been ordered to reinstate the employees with complete back pay in instances where the employee asked for union representation and was denied such representation during an investigation interview. For that reason, the safest way for employers is normally to offer union representation in case the employee requested for it (Robert 46-48). Conducting a fair investigation is the most fundamental thing during any incident investigation. For the investigation’s outcomes to give support to the employer’s disciplinary action towards the accused employee, the investigation is supposed to be fair and objective as well (Robert 44-46). Characteristically, in a fair investigation, the investigator is supposed to collect as much information as possible, examine the evidence objectively and should not assume that the accused employees are guilty of the misconduct beforehand. Furthermore, when a disciplinary action is taken before an investigation, for the ensuing investigation to be carried out fairly, other management official and not the one who issued the disciplinary action should be the investigator. Examples of aspects that may imply that an investigation was not fair include, where the investigators appeared to presume that the alleged perpetrator was guilt from the start and investigated the issue only to gather evidence to support his/her already arrived at conclusion or where the supervisor who imposed discipline did not examine both evidence and conclusions of the investigator objectively (Peter 15). Conclusion An effective workplace investigation eventually indentifies and tackles the problems/misconducts effectively. Even though the investigation leaves some complainant dissatisfied or the alleged perpetrator brings the same matters to an outside third party, an employer who has carried out an effective thorough investigation, documented the investigation outcomes and has employed the proper corrective action avoids or minimizes liability to the organization (Rosen 12-14). Cited Works Ferraro Eugene. Undercover Investigations for the Workplace. 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