Top 10 Workplace Investigation Snafus and Fubars (Part 1)
Based on my experience with over 1,000 workplace investigations of employee misconduct, formerly representing employees and now exclusively representing employers, it was pretty easy to develop a list of the top 10 worst investigation mistakes. The investigative mistakes can either qualify as a snafu, which is a situation marked by errors or confusion or an outright fubar. A fubar for those of you unfamiliar with World War II soldier slang, stands for “fouled up beyond all recognition,” or a derivative of fouled up.
1. Personalizing the investigation. An Investigator too often personalizes the investigation instead of sticking with fact and evidence collection. The Investigator’s role is to serve as a neutral fact-finder. The Investigator should be discrete, respectful, and professional.
2. Misunderstanding voluntary and compelled witness statements. Failure to understand the difference between a voluntary witness statement and a compelled statement can be lethal! If an employer wants to take a compelled statement from an employee as part of a workplace investigation, it may impact on whether or not the conduct could ever be pursued criminally. The 1967 United States Supreme Court decision in Garrity v. New Jersey (pdf) addresses this issue. It is crucial to first determine whether or not the allegation of employee misconduct concerns criminal conduct. If it does, have prosecuting authorities review the matter first before conducting a workplace investigation.
3. Failure to consider all management options. Management has a full cadre of available options to consider in managing employees. These include training, coaching/counseling, policy revision, notation in a supervisory file, performance evaluation, or mentoring to name a few. Only after carefully considering all available options and alternatives, should a workplace employment investigation be initiated.
4. Failure to develop an investigative plan. If a workplace investigation is warranted, careful thought should go into deciding: a) the list and order of witnesses, b) timing of the investigation, c) how witness statements will be memorialized, d) what evidence needs to be collected, e) who might be present during interviews and f) what rights the suspect employee might have to representation, if any.
5. Failure to follow up on all leads. It is very difficult to defend an incomplete investigation. All leads must be pursued to a rational conclusion and all witnesses must be interviewed, or an intentional decision made that the witness can’t offer any substantive information. All i’s must be dotted and all t’s must be crossed. The scope and procedure of the investigation may be scrutinized by an arbitrator or a judge. It is best to think ahead and consider the possible review which may follow the conclusion of an investigation.
Investigations should be conducted intentionally with a very definite plan. Stay tuned for Part 2.
