Strategies and solutions which reduce risks associated with controversial workplace investigations

Conducting workplace investigations involving controversial matters can create unforeseen  hazards and pitfalls for employers and decision makers. 

Here are some tips, strategies, and solutions which reduce and/or eliminate the risks associated with these hazards.  

Background.  There are two main types of workplace investigations: law enforcement and non-law enforcement. Non-law enforcement investigations involve no government officials, no arrests or prosecutions. Also, the standard of proof is “a good faith investigation and a reasonable conclusion.” 

Employers meet this standard by: outlining specific investigative objectives, interviewing all the participants, conducting a proper canvass, reviewing pertinent documents, identifying, documenting and collecting relevant evidence, and finally, conducting admission-seeking interviews.  

Labor law. An essential element of workplace investigations is a labor law concept known as  “Weingarten.” Weingarten requires employers to allow union members to have a union representative present, if requested, during the union member’s investigative interview. 

Policy. It’s prudent to have a company policy that requires employees to cooperate with all company-related internal investigations. 

Procedure. It’s important to conduct interviews in a manner that does not suggest that interviewees were unlawfully detained or illegally compelled to divulge inculpatory information.  

The ideal investigator is one who knows the difference between law enforcement and non-law enforcement investigations. Also, the investigator is well-versed in pertinent labor law. The ideal investigator is an excellent communicator; has a positive personality, and easily develops a rapport with others. The investigator uses these skills to obtain valuable and previously unknown information.

Trial Experience. The ideal investigator also has experience testifying in depositions, in criminal and civil court, jury trials, and disciplinary review boards and tribunals.  

Potential hazards to be aware when conducting internal investigations:

1. Conducting the investigation without clearly defined objectives.

2. Inadequate preparation for witness and subject/suspect interviews.

3. Not asking “Did you do it?” questions.

4. Failure to quickly verify or refute alibi statements.

5. Failure to have a partner/prover present during interviews.