Employers seeking successful and lawful investigator interviews should have an investigative routine that outlines the scope, confidentiality and policy for situations involving an employee’s actions.
“Demonstrated mastery of routine…inspires confidence,” said Charlie Ingram, of the Birmingham-based public relations firm Luckie & Company.
The scope of successful investigations concerning situations such as disputes involving safety issues, employee misconduct, theft charges or allegations of harassment should address which organizational policy was violated, and by whom, and the policy should be reviewed from an administrative standpoint to determine whether or not it would stand up in court.
“If your existing policy is at odds with your culture, with legal rules or with your needs, change the policy now,” said Pepper Crutcher, a partner with Balch & Bingham, LLP, in Jackson. “The more tension between your policies and your culture, needs and legal rules, the more ad hoc and untrustworthy your investigation will be, even if you do everything else right.”
Determining who should interview the employee — an attorney, the employer, or human resources manager — depends on several factors.
“The higher the potential cost of error due to unfamiliarity with legal rules or processes and the greater the need for confidentiality, the more likely it is that an attorney should at least direct the investigation,” said Crutcher. “However, an attorney squarely in the middle of an investigation may be required to divulge additional information that he would not have been required to disclose, if he had more remotely directed it. For that reason, it might be a better idea for an attorney to direct, as opposed to conduct, the investigation.”
A primary goal of an investigation should be to prepare the employer to defend an investigation with admissible evidence, said Crutcher.
“Things don’t have to be made to appear to be terribly formal, and they don’t have to be lawyered or overlawyered in order to be effectively developed for litigation defense purposes,” he said.
Crutcher advised against employee issues being handled by committee, except to make policy decisions prior to the conduct of an investigation or an action.
“The reason? The delay is usually years between an action being taken and it having to be recounted on a witness stand,” he said. “Almost invariably the members of a committee will remember things differently. Those differences can be made to look like posturing and concealment. It’s much better to have one responsible experienced professional to run an investigation.”
Crutcher, who has specialized in employment law for more than two decades, offered several suggestions to employers facing investigator interviews:
• To conduct a general interview, record investigation statements. Then go back and record certain passages from that interview on a given form signed by the interviewee;
• In preparing termination forms or papers, realize that what is written might prove to be a trial exhibit that can be used for or against them. Write a termination slip as though it will be read to a judge and jury;
• When feasible, use forms, because they are admissible as evidence, and have credibility and brevity. If the forms don’t have enough space for requested information, always refer to a separate or attached document. Be careful, however, to remain focused on the original complaint/problem and attempt to limit written information to that. In other words, keep the main thing the main thing;
• The decision should be presented to both accuser and accused, personally and in writing, because a message is being sent to a potential adversary that the employer is confident he can defend his decision on its merits, hiding nothing. The employer also shows other employees that he has a fair and orderly process that ends such situations with a written explanation. The idea is for the judge, jury or arbitrator to see it the same way. Also, a written decision reflects a considered reason for the action taken and shows that the employer is treating the accused as a person of equal dignity; and
• Legal advice is often needed when an employer has been accused of prior or current wrongdoing against an employee, and is called upon to investigate a new allegation against the same employee. The employer can be accused of favoring the employee by blunting or avoiding the charge, or of retaliating against the employee for his prior charge. In those situations, attorney involvement often proves worthwhile.
It is vital for a company to insure that every employee is aware that knowledge about company policy is easily available. Signing a disclaimer is not always enough, said Crutcher.
“Every labor lawyer will tell you that there are employees who will deny their own handwriting on documents they sign,” said Crutcher. “It’s important to demonstrate that everybody had a full and fair opportunity to acquaint themselves with the policies, if they wished to do so. If they chose to remain ignorant, the record should show that fact, or that they were lying about being ignorant. The goal is to make information easily obtainable by employees, and put it out on the table in front of them at every reasonable opportunity.
“You will never be able to guarantee that people will admit having the knowledge. That just doesn’t happen in real life.”
Contact MBJ contributing writer Lynne W. Jeter at firstname.lastname@example.org