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Are there any essential
advisories that a witness should be given during an
investigative interview?
Yes. Every witness should be advised to keep the
investigative interview and process confidential;
that the witness statement will be kept confidential
to the extent possible and will be revealed only on
a need-to-know basis; that employees who bring a
complaint or participate in an investigative
interview are protected from retaliation under the
employer's policies and the law, and that
retaliatory behavior should be reported if it
occurs; that although the witness is not under oath,
he or she is expected to answer questions
truthfully; and finally, that the witness is not
entitled to representation during the interview
unless he or she is a union member.
Is it better for my company
to retain an outside investigator directly, or have
my attorney hire the investigator?
The answer will depend on
the goals of the investigation. The primary
difference between hiring an investigator directly
versus going through your attorney is that the
latter is subject to the attorney-client privilege.
Typically, an investigator is hired so that the
employer has a good faith basis for taking
corrective action, which also can be used as a
defense in a later court action.
How much does it cost to
outsource an investigation?
The cost of an investigation
depends, of course, on a number of factors. VanDermyden Block provides an estimated cost
proposal early on in the process, based on
information known at that time. Cost proposals take
into account the scope of the investigation (number
of complainants, allegations, witnesses, documents);
the seriousness of the allegations (interim action
considerations, law enforcement concerns, threat
assessment experts, media coverage); report
requirements (comprehensive report, executive
summary, summary of findings to parties,
recommendations); and other costs unique to the
investigation.
What are some of the common
mistakes that workplace investigators make?
It is a mistake for an
investigator to conclude that there was a violation
of law rather than company policy. If the
investigator’s report concludes that the accused
engaged in disability harassment in violation of the
law, for example, the report could be construed as
an admission of liability if the matter proceeds to
litigation. By contrast, if the investigator
concludes that the accused engaged in disability
harassment in violation of the company’s stricter
policies prohibiting such conduct, the employer can
take corrective action without fearing an admission
that it violated the law.
Another mistake is the failure
properly to handle reports of potential violence.
Some witnesses complain – "I am afraid to talk to
you" – simply because they are nervous about the
investigative interview. But a seasoned
investigator will explore further to find out
whether the witness is concerned about personal
safety or threats of violence. Even if a complaint
is dismissed for lack of merit, an experienced
investigator will prepare an assessment of potential
violence if any of the witnesses report that they
feel physically threatened. As for actual threats –
“he told me he had a gun” – the investigator must
take swift action to make sure that proper
authorities are notified and appropriate steps are
taken to ensure a safe workplace. |
