Excerpted from Vermont Employment Law Letter, written by the law firm Dinse, Knapp & McAndrew, P.C. http://www.HRhero.com/vtemp.shtml?HLe

   by Amy M. McLaughlin

   Workplace accidents, discrimination or harassment complaints, whistleblowing claims - what do all of these things have in common?

   They require an objective, thorough workplace investigation. This two-part series will discuss and highlight the key considerations that every HR professional should have in mind when undertaking an investigation.

Step 1: Preparing for a Probe

One of the most important aspects of a workplace investigation is the preparation. Here are several steps to undertake when you're preparing for a probe:

Select an investigator. When you're determining who should conduct the investigation, here are several questions to ask: Will the person be impartial? Does the person have knowledge about the subject matter of the investigation? Does the person have experience in conducting investigations? Will the individual be an effective and credible witness if the matter develops
into litigation?

Identify witnesses. The investigator must select people who should be interviewed during the probe. They should include the complaining employee, the alleged wrongdoer, any third-party witnesses, and individuals identified by either the complaining employee or the alleged wrongdoer.  After identifying the people to be interviewed, the investigator should outline the areas of inquiry and decide in what order to interview the people.

Identify documents. Before meeting with any witnesses, the investigator should determine if any documents should be reviewed, such as company handbooks or policies, written complaints about the incident, or internal e-mails. The investigator may also wish to review the personnel files of all involved employees.

Record information. Before beginning a probe, the investigator should decide how to record the gathered information. For example, will the investigator use handwritten notes or rely on written statements from the witnesses?

Set a timeline. The investigator should decide on a timeline at the outset of any probe. The timeline should be short but realistic, given the subject matter and the number of people to be interviewed or documents to be reviewed.

Weigh interim action. The investigator should decide whether the situation calls for a temporary change in any working arrangements pending the outcome of the probe.  Interim action may be appropriate for reported complaints of harassment, criminal misconduct, or workplace violence.

Step 2: Conducting the Investigation

Be prompt, thorough, and effective. Keep workplace disruptions to a minimum during the investigation.  Address and quickly deal with any rumors. Timing is especially important. Since memories fade and documents may be lost, the investigation should be undertaken as promptly as possible. In addition, a prompt investigation lets the complaining employee know that you're taking the issue seriously. Plus, any delay may lead to the occurrence of another incident.

Maintain confidentiality. Investigators should never make an absolute promise of confidentiality. Rather, they should indicate that they'll do their best not to reveal any information except on a "need to know" basis.  Further, all investigation documentation should be properly secured.

Provide assurances. During the interviews, investigators should make several assurances (e.g., that no conclusion has been reached). They should also indicate that appropriate action will be taken at the conclusion of the probe. But they should never guarantee a particular course of action. Let the complaining employee know that the company has an open-door policy. The employee should feel free to provide information or raise concerns during the probe. Finally, investigators should advise every interviewee that retaliation won't be tolerated.

Listen during interviews. The investigator's role during an interview is to listen and hear both sides of the story. Investigators must be objective, nonjudgmental, and sensitive to each interviewee. They should obtain the facts, not opinions. They should ask open-ended questions: who, what, where, when, how, and why. Follow-up questions may be narrower and more focused. Based on that information, they should develop a chronology of events. Remember to advise each interviewee that the information should be kept confidential and that retaliation won't be tolerated.

Keep accurate documentation. Investigation documentation should be factual, accurate, and concise. All contemporaneous notes should be factual and detailed. If the investigator obtains a written statement, the interviewee should sign it to reflect that it's accurate.  The investigator should also note any retaliation warnings or statements made about the company's open-door
policy.

 
Copyright 2005 M. Lee Smith Publishers LLC. This article is excerpted from *Vermont Employment Law Letter.* Read more about the print newsletter and the Vermont attorneys who
write it: http://www.HRhero.com/vtemp.shtml?HLe

VERMONT EMPLOYMENT LAW LETTER does not attempt to offer
solutions to specific problems, but rather to provide
information about current developments in Vermont and
federal employment law. Inquiries about specific problems
should be addressed to the labor or employment law attorney
of your choice. Vermont does not certify lawyers as
specialists in labor and employment law or other areas of
concentration.