Conducting Rock Solid Internal Investigations
Do you conduct internal investigations, whether it's for workplace violence, incidents, whether it's for allegations of sexual harassment?
Most companies need to conduct internal investigations, but a lot of times people get them wrong.
And if you get a workplace violence or sexual harassment investigation wrong, you can actually expose your company to larger awards, including punitive damages.
I spent 30 years conducting investigations, including approximately 12,000 witness interviews. I did them for civil plaintiff and criminal defense, law firms as well as conducting internal investigations for businesses, nonprofit organizations, and government agencies.
I'm putting on a great online, live workshop on this Wednesday, March 28th at 9 AM Pacific time, on how to level up your witness interviews with my proven 6 step process that not only maximizes results, but will take away the stress that comes from conducting witness interviews.
So let's take a look at some of the major problems that I've seen when I've been brought into assess internal investigations and also the steps that I chose to work on to make sure that when I conducted an internal investigation that the results of that investigation were bulletproof.
So, one, the 1st thing we want to look at is, how are you structuring your internal investigation?
Internal investigation should always be structured the same way.
And what you're really looking to do is the very 1st thing that you want to do is interview the complainant.
And this is especially important both for workplace violence prevention and for something like sexual harassment.
You start with the complainant and that it doesn't matter if they filed a formal complaint or not, or if it was a verbal, you still need to start with them.
You're going to want to have them take you through the specifics of what they are alleging and let them tell it 1st as their own narrative.
You can say something like, okay, so take me through what's gone on, and then you're gonna be quiet and let them do the talking.
Let them do a full run through, and then you can start to probe with some questions.
Do not start with your own prepared list of questions. It's a really good way for the interview to go south, and you need for the complainants interview.
You need to get to all of the allegations, look for all of the factual information that may support those allegations, and basically take it from their perspective.
Yes, in the end, your job is to get to the truth, and oftentimes that truth, there's a little bit here, a little bit there, and then there's, it lies somewhere in between.
But your job when you start with this is to go through what they're complaining about from their perspective.
You also want to use the complainants interview process to help you identify witnesses.
And they don't necessarily have to be fact witnesses.
They can also be people that the complaint has discussed issues they were having with, because one of the things that we're going to get to a little later on are credibility determinations.
Okay, once you've interviewed the complainant, you'll do the same thing again with the respondent.
Now, obviously with the respondent, you know what the allegations are.
So you have to ask the respondent about those specific allegations.
So the interview is going to be conducted a little differently.
But again, you really want the respondent to run through their take on it before you start your probing questions.
So what you could do is do something like, here's what the allegations are, give me your take. But make sure, again, that you have them go into detail.
You're not looking for something that just scratches the surface because that's one of the ways an internal investigation can be torn apart.
You need to probe, you need to go into detail, and the respondent needs to be able to provide as much detail as possible, just as the complainant does in order for you to conduct a proper investigation.
And just like with the complainant, you want the respondent to identify any possible witnesses for you.
You can also ask if there's any documentation, but oftentimes on an internal investigation other than the complaint form, there isn't going to be documentation, but you do want to ask, you might want to ask for copies of text messages, or the internal messaging system if your company operates one of those.
So that you have any type of information that has covered what needs to be covered.
We don't need extraneous stuff, but you do want to look for that and see how it supports.
Next, you're going to conduct an interview with each of the identified witnesses.
And again, they don't have to be about the specific facts themselves, as long as they can say, so-and-so told me what happened at such and such time.
You're looking for a contemporaneous statement regarding it.
You are obviously also looking for fact witnesses that can prove or disprove the allegations, and you need to go through, have them tell you what they know and then probe with your questions, and again, it's really important for you not to focus on your own questions.
Your job is to listen and then probe. Once you've gotten all of those together.
The next step that you should do is prepare a summary of your notes or your recording of all of the interviews that you do.
Now, I personally prefer doing notes to doing a recording, but your company may have a specific policy one way or the other.
The reason I like being able to do notes is you're able to use their words, but you're also able to slow down the process, you're able to say, hey, hold on a second. Let me back you up as you work on your notes.
And it's very critical, that you have this done in their words, not your estimation of what they're saying.
So you don't want to use bullet point notes. You want to actually write down what they say.
And a lot of times that means slowing the interview down, and one of the biggest mistakes they make on internal investigations is going too fast on an interview, going directly to the questions they want to ask, getting very stilted responses, and then winding up, going, oh, we couldn't make a determination.
But that's really not what you're after. And if you have information, but you ignore it, or you brush over it too quickly it can be torn apart.
So you want to focus on making sure that you take your time, that you probe each and every point that you need to cover.
And if the witnesses go somewhere else that you weren't aware of, You need to go there too.
And that's really important because a lot of times witnesses will take you or even the complainant or the respondent will take you in a direction that was not originally anticipated, but is well worth following.
So you want to go ahead and follow those and pursue those.
And if you're focused on a list of questions, you're not gonna go there.
So you really need to listen and follow up with where they go.
Once you put together your interview summaries, you're going to use that information to then do your report on the investigation itself.
In that report, depending upon the company and the type of situation, for example, if it's workplace violence, you do need to protect people from being retaliated against.
So it's very important that you actually be careful about not necessarily identifying everyone, but you're looking for areas where there's corroboration or where somebody can definitively say, no, that didn't happen.
And you want to try to use that information to look at it dispassionately,
You're not looking at it, to prove because you like this person or disprove because you think it will benefit your company.
You are looking at this dispassionately, and you're looking at what the information tells you.
Now, earlier I mentioned something about credibility. Credibility determinations can make the difference between an investigation that is indeterminate in a finding versus one that has a finding.
And when you look at credibility, you're looking at consistency, you're looking at prior consistent statements.
All of those types of things that show that this person is more solid than the other person or their version is more solid.
And one of the things I often do with witnesses, and I think it really helps them kind of understand where you're coming from is, I'll say oftentimes we get an allegation here, the response to that allegation is over here.
But what really helps us to better understand what's actually happening is by looking at what else occurs and where those things occur and they overlap, that's how we get to corroboration.
Now, from a company perspective, you're not just conducting an investigation. You're looking to see if there's a genuine problem within the organization that needs to be addressed.
For example, in a workplace violence incident, You need to know what triggered that incident so that it can be remedied not to occur again, because that's California's requirement.
You've gotta do that.
So make sure that you're not just looking surfacely, but that you're looking also at what has occurred and the ways that you can address that.
Now, once you put all of that together, that's when you can make a recommendation based upon what the results of the report work.
Now, what I typically do is I will do the witness interviews.
And keep those in one thing as the interview summaries.
I will do a summary report identifying the allegations and what the witnesses have to say about it, what the information has to say about it.
And then I do a separate recommendations based upon the information that's documented as to what my recommendations would be.
Now, every place may have it done a little bit differently, but I found over the years that's the best approach to take.
If you have someone who identifies a witness, you need to interview that witness, you can't just go, okay, that's great information and ignore that witness, because that is one of the ways your investigation will be torn apart.
If someone identifies documents and message, let's say text messages or emails, you've got to pull those two, you've got to review those, and you've got to look at how the information in those matches or proves or disproves what you're investigating.
Again, anytime that you're presented with information, and you choose to ignore it.
You run the risk of your investigation being torn apart, and potentially exposing your employer to punitive damages, and from the plaintiff lawyer side, if you can show that an investigation is a pretextual investigation, done with a predetermined outcome, and one of the ways to do that, maybe perhaps the best way to do that, is who is and is an interviewed, then you have a really good shot at not just having a great But it actually getting towards punitive damages.
Can't make the workshop? Schedule a free consultation.
