Workplace Investigation Sins 6 and 7: Failing to Protect the Process

Jennifer Keaton is a Workplace Investigator with One Mediation.

A recent article detailed 5 “sins” of a workplace investigation.   The article details five requisite skills for interviewing individuals, but it admittedly does not provide an exhaustive account of all the deadly sins.

Adding two more sins to this article, to make a complete “Seven Deadly Sins,” must include (6) not advising employee witnesses of anti-retaliation provisions that exist and (7)  requesting that employee witnesses not discuss the investigation with other employees and to advise the investigator if someone does discuss the investigation with them (while it is pending).

Advising witnesses about retaliation protections provides some assurance that participating in the investigation will not bring some measure of hardship or retribution on them, at least not without the threat of recourse.  This step is often a critical step to establishing rapport and obtaining cooperation from a witness.

Where an investigation requires multiple days’ of interviews and credibility determinations are a concern, an investigator should take steps to assure that witnesses do not influence the information solicited by the investigator.   One means to mitigate such influence is for an investigator to request (or have an employer direct an employee) not to discuss or communicate about the interview or the investigation with other individuals, at least until the investigation is complete, and to inform the investigator of any individuals who do discuss it with them or attempt to discuss it with them.  For some witnesses, the request is a relief as they can “blame” the investigator for their disinterest in discussing the matter with other employees or individuals. This kind of gag order also is effective in promoting accountability because it lets the interviewee know that someone else may “tell on them” if they discuss the interview.

Finally, if the investigator receives any reports of discussions of the investigation or the interview, it may factor into credibility determinations of witnesses and help illuminate certain motivations.   If an accused harasser, for example, spends time telling individuals what they “should say,”  “better say,” or even asks what the interviewee “plans to say,” this conduct could constitute witness intimidation.  It may also suggest that the accused is trying to influence the outcome of the investigation, which may demonstrate retaliatory motives or admissions of misconduct.

All told, a workplace  investigators who fail to protect the investigation process may find that the investigation is compromised or otherwise ineffective.  Good pre-planning with regard to an investigation can assist an investigator with avoiding such fatal flaws.

Workplace Investigation training is critical to an investigator providing a proper and professional investigation.  One Mediation’s Workplace Investigation Training Modules provide a deep dive into the investigative process (Module I) and experiential learning opportunity (Module II) that provide a strong foundation for investigators in these areas.  It is offered two-times per year.

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