The Six Ways Attorneys Will Attack Your Investigation

Your employee's attorney's job is to undermine your investigation and point out its weaknesses. Below are the six standard attacks they'll use.

You must proactively prepare to defend your investigation and the decisions you make along the way against the following types of attack.

•The "Neutrality" Attack
•The "Time" Attack
•The "Fair &Thorough" Attack
•The "Taint Free" Attack
•The "Retaliation" Attack
•The "Burden to Remedy" Attack

The Neutrality Attack:

The investigation was not conducted by neutral, trained investigator.

Neutrality can be undermined when the person conducting the investigation:

•Knows either party too well
•Has repeatedly investigated the parties
•Shows a pattern for siding with the employer
•Has disciplined the parties for unrelated claims
•Is subject to job performance evaluations from the parties
•Is privy to private information unrelated to the claim
•Is being "managed" by counsel or management

Suggestion: you should consider bringing in an outside Investigator when:

•No one in-house has been trained to conduct investigations
•The person investigated is a high ranking executive or a member of HR
•The complainant asks for a neutral investigator
•You're opening Pandora's Box (use neutral attorney/investigator)

The Time Attack:

The investigation was not conducted "promptly.
Starting an investigation within one day is ideal, and within one week is crucial.

•The investigation can be underdetermined when there are unnecessary, unreasonable or unexplained delays. HR on vacation is not an excuse.
•Delays create a hardship on the parties. Justify and explain delays.
•Explain significant delays between "Legal Notice" and the onset of an investigation.
•Minimize hardships.
•Suspension of the accused should be with pay.
•Consider having more than one or two people trained to conduct an investigation.

Be sure that:

•You have policies that explain to employees how to make a complaint.
•You have intake procedures for complaints and forms available for making complaints.
•Managers are trained about what to do/say when an employee complains to them.

The Fair & Thorough Attack:

The investigation was not fair to both sides.
The investigation should be thorough with questions asked of parties and witnesses, giving the accused an opportunity to respond to additional information/allegations that surface.

•Don't promise "confidentiality" to parties.
•Don't prejudge beforehand. It is usually not "what you expect."
•Justify or explain why, if one party was not interviewed.
•The witness list should be "organic" and derived from investigatory interviews.
•Interview witnesses on both sides and ask parties about witnesses that can support or corroborate their statements.
•Justify or explain why any witnesses were not interviewed/ interviewed by phone.
•If "everyone" was interviewed, justify or explain why.
•Support credibility determinations.
•Questions should be open ended, not leading. Interviewer must ask "difficult" Qs.
•Evidence that is not available or that was destroyed needs to be explained.
•If "scope" of the investigation is limited, explain and justify questions or information left out for this reason.

The investigation should be well documented. If it is not, it looks like the company may be hiding something. Remember, the investigation is most likely a "defense" in litigation. In this case, privilege is waived as to all statements and evidence presented to the investigator. Nothing is confidential in this case, including the investigation conversations, evidence and conclusions—even if the investigator is an attorney.

The Taint Free Attack

The investigation was not protected from contamination.
The investigation can be "tainted" if:

•The parties and witnesses are not reminded by the investigator to refrain from discussing the investigation with anyone other than the investigator
•The investigation was conducted in an open, non-private setting
•If the investigator discussed the investigation with anyone other than counsel, or specifically delineated individuals
•If the parties discussed the events with any witnesses before they were interviewed
•If the rumor mill or gossip has not been contained
•If the several parties colluded before bringing a claim
•Evidence was purposely destroyed or overwritten

The 'Retaliation' Attack:

One of the parties or witnesses was not protected from retaliation during investigations and afterwards.

Retaliation is its own "complaint" and must be investigated as an independent claim that violates the law and company policy. Investigators can defend against the "retaliation" attack by:

•Suspending the accused, with pay, when necessary, pending the investigation's conclusions (ensuring that the accused knows and understands that this is not a disciplinary action)
•Reminding the parties and witnesses during the interview about the company's policy that prohibits retaliation and ensuring and understanding of the type of conduct that may be construed as retaliation
•Asking parties and witnesses if they fear retaliation or feel they are being retaliated against
•Determining if there was a history of abuse, stalking, threats of violence, damage to property and, if so, taking appropriate security measures
•Having parties and witnesses contact the investigator if they experience retaliation.

Even when you are trying to "protect" the complainant, he or she should never be the one sent home, transferred, or suspended pending an investigation because he or she will claim that this was retaliatory punishment for making the claim. If the complainant insists on staying home, get it in writing that he or she is the one who wanted this and that he or she does not consider it retaliation.

The Burden to Remedy Attack:

The employer's response was not "reasonably calculated" to halt the harassment.

If you are asked to make conclusions and recommendations for disciplinary actions, remember:

•Remedial actions that may be taken by employers include counseling, written warnings, reprimands, probation, suspension, demotion, a shift in the job duties or job location of the alleged perpetrator, training sessions, and termination.
•Remedies should not be pretext to cover-up other wrongdoing.
•The employee should not be terminated for "other wrongdoings" to avoid an internal finding of harassment.
•An employer's ignoring remedial actions recommended by an investigator can demonstrate a failure to meet the "burden to remedy."
•Ongoing misconduct demonstrates a failure to meet the "burden to remedy."
•Damages will accrue from the time of legal notice and are not mitigated unless the harassment stops.

Even when the investigation conclusion does not find that the allegations are valid, it is still acceptable to recommend "refresher training" for the accused. This may not be deemed "remedial" or "disciplinary," but may ensure that inappropriate or non-managerial conduct does not happen again.

It's critical, to have a policy on investigations. Of course, for any company, there are a lot of critical policies. What about yours? Detailed? Accurate? Up to date? In most companies, there are 50 or so policies that need regular updating (or maybe need to be written). It's easy to let it slide, but you can't afford to—your policies are your only hope for consistent and compliant management that avoids lawsuits.

Jody Katz Pritikin, an investigator and seminar leader for Katz Consulting & Associates in Santa Monica California and summarized by The Whitford Group for this blog. Today's HR Daily Advisor Tip

If you need investigative assistance or help with policies and procedures, please contact me at:
TheWhitfordGroup@aol.com or 704 298-2115