How Should HR Set the
Stage for Workplace Investigations?
One of your employees has a complaint about another
coworker’s behaviors, and as a manager it’s your responsibly to look into the
situation, but you’re not sure where to start?
To get to the bottom of a situation, legal experts advise to
move quickly during the interview process and ask questions, however you still need
to put your employees at ease as you interview them. Below are some helpful
tips guiding you to a successful workplace investigation.
Where and When
Each witness should be interviewed by the HR professional that
will be investigating the complaint. It should be in a private location and at
a convenient time and place, noted Doreen Martin, an attorney with Venable in
New York City.
Bernard Bobber, and attorney with Ogletree Deakins in
Milwaukee also mentioned that, “You are more likely to get more information
from the employee if he or she is comfortable.” There are different locations HR
could conduct interviews that would affect the stress levels of your employees.
Some business might have an HR office, and that’s where you can get the most
privacy and confidentiality. Meeting at a neutral location such as a conference
room or the employee’s office, if the employee has a private one, can make it
less stressful, said Stephanie Caffera, an attorney with Nixon Peabody in
Rochester, N.Y.
“Eliminating physical division and barriers can make the
interview seem more relaxed and collaborative instead of an adversarial meeting,”
stated by Timothy Kamin, an attorney with Ogletree Deakins in Milwaukee. He
advised it’s best to avoid large desk or tables between the interviewer and the
employee.
Notice about
Interviews
Katie Rhodes, an attorney with Epstein Becker Green in New
York City believes that when conducting an interview with the complainant, you
don’t need to worry about giving them short notice of the interview. She also
believes HR should provide little notice to the potential witness or the supposed offender. She said, “This
prevents witnesses or alleged wrongdoers from calibrating their version of
events. In addition, there is value to getting an interviewee’s initial, raw
reaction to questions as opposed to letting them prepare answers in advance.”
Caffera said
that the interviewer should let the witness’s manager know in advance when they
will be conducting the interview, and that the witness will be away from work
for a period of time. There are a couple directions the interviewer could go to
inform the interviewee about the interview. They could send an e-mail or drop
by the employee’s office asking to briefly speak with them, without stating
their purpose.
When the Employee Should Be Told
If the employee
is the only witness and there is no suspicion, the HR professional should let
the employee know immediately that they are not in trouble, putting the
employee at ease. Depending on the severity of the situation, HR should be able
to be able to convey it through the tone of their voice, facial expression, and
choice of words.
The witness
does not need to know all the details of the situation and what’s essentially
being investigated, said David Barron, an attorney with Cozen O’Connor in Huston.
He said you should not let the employee know what others have said, it could
potentially affect their testimony. Instead, he recommended relaying that there
is an investigation into an HR matter.
Rhodes recommended to stay vague about the specific allegations
being investigated can provoke raw and honest responses from the employee, and
it can make it less obvious who originally made the complaint. A good tactic,
according to Rhodes, is to start off the interview by asking open ended
questions about a broad topic, than narrow down how specific your questions
are, until you get to the core issues.
Bobber acknowledged that, an employee might try and take the
laidback route and give inadequate answers if HR were to ask general questions.
He suggested to be more direct by asking, “Yesterday, in the lunchroom during
the break, did you observe the confrontation between X and Y? What were the
specific words that X said to Y?” This method is more likely to provoke
specific responses rather than asking a generic question such as, “Have you
heard any inappropriate racial comments in your work area?”
It’s important to inform the alleged subject of their
allegations, that way they can properly defend themselves during the interview.
Martin stressed, explaining to the subject that the conversations will be kept
confidential is essential. Establish with the subject that you are looking for
the truth and facts so the complaints can be solved impartially for all
employees involved.
Informing the interviewees that providing misleading or
incomplete information will result in disciplinary action. It is in the employee’s
best interest to not put their job at risk by providing untruthful information.
Retaliation is also off limits to those who participated in an investigation is
prohibited.
Weingarten Rights
Unionized employees have the right to request for a union
representative to be present during an investigatory interview. However, there
must be reason for disciplinary action as the end result.
Employers should have two employees from management, such as
HR and a manger, present while investigatory interviews are being conducted.
Investigations can be tricky navigate, an HR professional
should always be involved. If you ever have any investigation needs arise or questions,
Converge HR Solutions has trained HR professionals that can handle the
investigation process. You can call us at 610-296-8550 or email us at info@convegehrsolutions.com for
assistance.
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