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The quality of the employer's internal investigation is always relevant in employment discrimination lawsuits. A court's review of the employer's investigation usually arises in one of two ways. First, proof of a competent investigation of an employee complaint shows that the employer took prompt remedial action, which can sometimes serve as an affirmative defense. Second, employees who are terminated as the result of an employer's investigation often cite the inadequacy of the investigation itself as evidence of discrimination or disparate treatment. The goal of this 101 Article is to provide some insight into how courts will evaluate the quality of an internal investigation.
When to Conduct an Investigation
Internal investigations are warranted by any of three occurrences:
Planning the Investigation
Investigations should be done quickly because employee misconduct can be harmful to the organization, the general public, and coworkers. In addition, any delays in gathering information could taint subsequent disciplinary action. When selecting an investigator, choose someone who has institutional credibility, personal credibility, availability, and expertise.
Remember that good investigations take time. If the investigation becomes involved or time consuming, the employer should consider suspending the employee pending the investigation. A suspension with pay shows that the employer is not pre-judging the situation, and prevents employees who may be disciplined later from arguing that the suspension itself constituted discipline. Where suspension is not a viable option, the employer should consider transfers, shift re-arranging, assigning extra supervision, restricting access to loci of trouble, or temporarily limiting the employee's responsibilities.
Chain of Command Decision-Making
Avoid "cat's paw" liability by having a review process of the proposed decision reviewed by someone removed from the situation. Cat's paw liability arises when a decision maker accepts the recommendations of a biased supervisor without conducting an independent investigation or review of the facts. Telephone and email communications are nearly always insufficient to resolve something as important as an employee's termination, especially when those conversations are not subsequently documented in a format suitable for the personnel file.
Maintaining Complete Employee Records
Employee personnel files must contain legible, clear, and specific accountings of every meeting with an employee involving:
Begin interviews with an explanation of the interview process and what you hope to learn. Answer questions honestly and explain when you are not at liberty to answer. Ask open-ended questions. Ask enough background questions for witnesses to add context and fill in blank spots. Ask clarifying questions to understand how witnesses use words (e.g., what do you mean by "yell?"). Make sure to acquire consent if you are going to tape-record the interview.
Protecting the investigation
Make sure to keep investigative documents in a place where only a few people have access. Investigative documents remain sensitive even after the investigation has ended, but must be stored in a retrievable manner or else destroyed. Adopt and follow a logical document destruction policy.
You can attempt to protect investigative documents from discovery through the attorney-client privilege and work-product doctrine. To do so, follow these steps:
Close the loop
Before you complete the investigation, summarize your process with the complainant and accused to determine whether they have any complaints about the process, and schedule a debriefing with each of them for after the investigation is complete.
Independent investigations are about process. The law does not require that investigations be error free; it requires that they be independent and fair. Have a solid policy, and include some procedural safeguards, such as:
About the Author
Andrew M. Schpak is an associate with Barran Liebman LLP in Portland, Oregon, where he practices labor and employment law. Mr. Schpak is admitted to practice in Oregon.