What Best Practices Define Successful Investigations of Employee Conduct?

Tribal employers define workplace rules with the expectation that employees will follow the rules and in most instances good behavior is the result, but there are times when employees fall short of the mark.  In those instances when employees fall short of the mark, when should you conduct a formal investigation in evaluating the employee’s conduct?  Here are ten respectful suggestions regarding the best practices surrounding employee investigations.  Note, these suggestions are summarized in The Essential Guide to Workplace Investigations (Nolo 2010).

Decide whether to investigate…Sometimes you receive enough information to make an employment decision (suspend, fire, counsel) but other times you need more information and an investigation is the process for gathering more information. If the claim appears serious and the facts are in dispute, an investigation is likely the best choice.

Take immediate action if necessary…You may have to protect employees of the tribe by taking immediate action.  In cases of serious sexual harassment or employee theft to name just a few examples, you do not want to create a situation where the perpetrator can steal more money or harass your colleagues again.  Be careful here to avoid alleging misconduct by the perpetrator until you have strong evidence to support the allegation.  Remember both the alleged perpetrator as well as the alleged victim can be potential plaintiffs therefore protect your tribe from both.

Choose an investigator…The right investigator is perceived as fair, impartial and experienced.  Sometimes the investigator should be an employee on staff and sometimes the better choice is hiring an outside investigator.  When the alleged perpetrator is closer to the top of the chain of command or if you are convinced there will be litigation, the retention of an outside investigator makes sense (and cents).  This is a judgment call which should be evaluated at least in part by experienced human resources professionals.

Plan the investigation…Investigations are rarely routine and therefore three step protocols defining the dance steps do not exist.  Instead, consider what you think you know about the matter, what you want to know, how you are going to acquire the information and in what order.  I like gathering the documents and other evidence first and performing interviews second.

Gather documents and other evidence…Unless the investigation is entirely based on he said, she said conversations, there will likely be paper documents (performance reviews) and electronic documents (emails, texts, social media posts) which will give you some insight regarding the facts.  With these documents I like creating a timeline of events, conversations and actions which makes the interview process more efficient and useful.

Interview…Asking relevant questions of the participants and witnesses almost always generates helpful and useless information.  You must be able to listen to the witness to nudge the interview toward relevant feedback.  I do not prepare formal questions but instead I list the topics which are relevant.  For instance, a typical topic list will include “get feedback regarding allegation that employee denied seeing the touching on December 3…”  Decide whether recording witness interviews or asking a colleague to be present during the interviews.

Evaluate the evidence…Sorting out the helpful from the useless information is what happens during this phase of the investigation.  Your initial beliefs regarding what happened will be modified by the investigation process.  Television convinces us that the investigation will give us crisp facts which are measured against the rules of the workplace.  Unfortunately, life is messy and those crisp facts are replaced by mushy testimony from contradictory witnesses.

Take action…If the investigation process yields the conclusion that serious misconduct occurred, taking action is a critical step in limiting employer liability.  Gauging the severity of that action or in other words making the punishment fit the crime is a key step in the investigation process.  Decide whether you want your investigator to limit themselves to gathering the facts only or gathering the facts and making a recommendation regarding discipline if warranted.

Document the investigation…Draft the investigation report which explains what you did and why.  Determine whether you intend to seek protection of the attorney-client privilege and if you do talk to your lawyers about how that works.  Remember, the documents and other evidence generated by the investigation process are not placed in an employee file but instead in confidential files likely maintained by the human resources director.

Follow-up…Determine what you can say to the victim, what you must say and do regarding the perpetrator and whether training is a necessary step to mitigate the risk of more violations of the rules in the future.

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Recommendation:  Some investigations deserve serious consideration about process. Take some time considering the best path before launching the investigation and the ten ingredients above will assist in that analysis.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.