The Association of Workplace Investigators (AWI) has released its Guiding Principles for Conducting Impartial Workplace Investigations, a useful document for anyone who is involved daily, or on occasion, in conducting or overseeing internal investigations.
It’s a step-by-step outline of things to consider at each stage of an investigation, designed to help the workplace investigator conduct a comprehensive, impartial, compliant investigation that will hold up in court. But the guidelines have a bigger mandate than just to help investigators do their jobs well.
Litigation and Evaluation
“For the practitioner it provides a framework for the individual to work from,” says Catherine Balin, who is Vice President of EXXTI Inc, and also sits on the Board of Directors at AWI and was involved in the creation of the guidelines. “But in addition to that, and it’s already begun to appear, it relates to litigation cases,” she says. “Workplace investigations will often come under scrutiny as they relate to litigation. These guidelines have played, and will certainly in the future continue to play, a role in taking a look and evaluating investigations in that way.”
Until now, the only document in place for this purpose has been the EEOC guidance for the conduct of a workplace investigation, says Balin. But the AWI guidelines have a much broader perspective, and the capacity for greater impact.
“Although it will service well the person who is tasked with conducting the workplace investigation, it will also, I believe help the employer tremendously,” she says. Employers will benefit from their investigators’ consistency, approach and thoroughness. And employees, whose lives are affected by workplace investigations, will benefit from well-conducted, impartial investigations too. “So it has a broader implication than a one-entity answer,” says Balin.
The Guiding Principles
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Here’s a brief summary:
1. Whether to Conduct an Investigation
Some questions to consider are:
- Is a policy violation or a violation of law alleged?
- Is there a legal obligation to investigate?
- Where discrimination is alleged, is the complainant in a protected category?
- Will the investigator be able to maintain the impartiality of the investigation
2. Determining Who Should Conduct the Investigation
An employer may decide to choose to use an in-house (internal) or outside investigator. Either way, the investigator should:
- Be impartial
- Be objective
- Have the necessary skills and adequate time to conduct the investigation
3. Defining Investigation Scope
The employer and the investigator should agree on the scope of the investigation.
If the investigator becomes aware of issues that are beyond the initial scope of the investigation, he or she should inform the employer, possibly in writing, so that the employer can decide whether to increase the scope or conduct a separate investigation.
4. Investigation Planning
In the planning stage, the investigator and employer may consider the following:
- Documents needed, and who can provide them
- The form that the report should take (usually decided by the employer
- Whether verbal and/or written advisements will be provided to witnesses
- Who will be interviewed, in what order, and for what purpose
- Who will schedule interviews
5. Communicating with Representatives of the Employer
The employer should determine who the investigator will be communicating with and about what matters, taking into consideration issues of privilege.
It’s a good idea to have an employer representative handle logistics and scheduling and provide initial advisories to current employees, such as the need to cooperate in the investigation, to maintain appropriate confidentiality, and to tell the truth during the interview.
6. Confidentiality and Privacy
The investigator should safeguard the confidentiality of the investigation without guaranteeing anonymity or complete confidentiality, but may need to share information with participants on a “need to know” basis.
7. Evidence Gathering and Retention
When gathering information, the investigator should consider:
- The nature of the allegations
- Probative value of the evidence, weighed against the costs of gathering the evidence, in terms of money, time and potential disruption to the workplace
- Whether outside expertise is needed
8. Witness Interviews
The investigator should create an environment that maximizes the chances of obtaining reliable information and should document all witness testimonies.
The complaining party should be asked to provide the specifics of the incidents described and the identities of witnesses and/or documentation and the respondent should be given a full and fair opportunity to respond to the allegations.
9. Documenting the Investigation
The investigator should document:
- steps taken during the investigation
- decision making process
- any road blocks experienced
- The process used to verify the accuracy of information
10. Investigation Findings
In many cases, the employer determines that the scope of the investigation be restricted to determinations of fact. Legal conclusions and recommended personnel actions should be communicated only if they are requested and within the scope of the investigation.
If the employer has requested one, a written investigation report should be submitted.