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Unraveling HR Investigations
They don’t have to be a mystery
April 21, 2020
Kate Bischoff

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Opening Remarks

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Speaker
Housekeeping
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Questions
Today’s
topic

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Speaker
Housekeeping
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Questions
Today’s
topic

About Me
• Management-side Employment
Attorney & HR Consultant
• Human Resources Officer for the
U.S. Department of State in
Jerusalem & Zambia
• Adjunct Professor of HR Compliance
at Mitchell Hamline
• Training
• Policies & procedures
• Investigations

What We’ll Cover
• Process of investigation
• Goal setting
• Planning
• Interviews
• Document review
• Findings
• Determining appropriate actions
• Risks with investigations

“Unofficial”
Complaints Don’t Exist
When management
– any manager –
hears of, sees, or suspects inappropriate
behavior, the organization is on the
hook. Period.

Once Learned,
Immediate Action
Particular to harassment, we need to
prevent any additional conduct
• Requirement of “timely & appropriate
action”
• What can we do to immediately get
conduct to stop, prevent it from
happening again?
• Separate individuals
• May not require any action

Why We Investigate
• Concerned about the work environment
• Want the environment to be positive &
productive
• A timely investigation – with appropriate
action taken – can limit the liability for
an organization

Setting a Goal
• What’s the goal?
• Start with the business goal in mind
• Often this will be “determine the working
environment in XXX” and/or “determine if
action is necessary”
• Setting a goal sets a parameter on the
investigation
• Easier to maintain focus of this particular
investigation
• What you find may lead to other
investigations

Identifying the
Investigator
• Who is the best person to investigate?
• Trained individual
• Truly be impartial
• Should we look outside the organization?
• Attorney
• Privilege/Work product
• May become a witness in subsequent
proceedings
• Credibility
• Knowledgeable investigator
• Best to objectively provide actionable
information

Investigation Review
• Interviews
• Documents
• Handbook policy
• Personnel files
• Technology
• Social media
• Phones
• Emails

Interviews
• Who to talk to?
• “Victim”
• “Harasser”
• Witnesses
• Within the same department/division
• Outside the same department/division
• Managers
• Who gets interviewed may change during the course of the
investigation

Outlining the
Interrogation
• When?
• Where?
• Record or not record?
• Questions?
• Broad, general topics
• Prepare for follow-ups
• Setting objectives may lend itself for
conversation

Starting the Interview
• Who is the interviewer?
• What is the purpose of the interview?
• Extent confidentiality may apply to
what is said
• National Labor Relations Act
• EEOC
• What if unionized?
• Weingarten rights
• Going to take notes

Interview Itself
• Rigidity does not lend itself to
natural conversations
• Be mindful of normal
conversational habits
• Allow for some moments of
silence
• Ask if there’s anyone else you
should talk to
• Ask if there’s anything else
you should know

Important Interview
Questions
• Traditional who, what, where, why?
• Brass tacks
• How did they know? Hear? See?
• Date, time, some cases clothing
• Critical for credibility
• Handling rumor
• How did you learn about this?
• Did you believe them? Why?
• No such thing as “hearsay” in a
workplace investigation

Victim/Complainant
Interview
• Start with a narrative question
• Tell me what happened
• Then get into details
• Know of similar conduct with other
people
• How did s/he respond at the time?
• Be sensitive to the difficulty it may take
for some victims to tell the story

The Alleged Bad
Actor
• Opportunity to be heard
• Generality of “how are things
going?”
• Summary of the issue
• If acknowledged, get into details
• May be possible that disciplinary
action will be taken

Concluding All
Interviews
• Thank all who talk with you
• Give them contact information if they
think of or learn of something later
• Remind of confidentiality covered at
the beginning
• No retaliation for speaking with you

Credibility
Assessment
• He said/She said situations
• Evaluate credibility
• Are stories consistent?
• Are interview responses
consistent with documents?
• Possible that credibility will
establish itself for you

Documents to Review
• Organizational chart
• Job descriptions
• Performance reviews
• Notes
• Diaries/Journals
• Meeting minutes
• Recordings

Technology
• Emails
• Instant messaging
• Text messages
• Social media
• Video
• Phone records
• Time & attendance
records
• Log-ins

Documents &
Technology
• Retain copies of relevant documents as
a part of the investigative file
• Reference if/when you use them in an
interview
• Don’t have to be as formal as “Exhibit A”
• Have interviewee acknowledge s/he has
seen it before

Tools to Review Technology
• Keyword searching
• Analytics may concept map quickly allowing for fast review

Interviewed, Reviewed,
Now What?
• Prepare reports
• What deliverables?
• One report
• Two reports
• Findings, not conclusions
• Remember the investigator’s role
• Find out facts
• Not make recommendations
• Attorneys may make recommendations

Oral vs. Written
Reports
• Corporate Counsel identified a trend
of oral reports
• Oral
• Not written down
• Lends itself to a conversation about the
findings
• Written
• A record of the investigation
• Summary of the facts
• Could be subject to discovery

Determining
Appropriate Action
• What happened?
• What have you done before?
• What will make the conduct stop?
• What is best for the business?
• “Untouchable” employee issue
• Evaluate the risk of liability & operations
• What about your credibility as an
organization?

Appropriate Action May Include…
• Written warning
• Suspension with pay
• Demotion
• Relevant training
• Denial of bonus
• Removal from certain
programs
• Termination
• Transfer of accused

Appropriate Action
Does Not Include…
• Any “adverse action” to the accuser or
victim
• No transfers or change in shift
• If requested, document the request
• Do not contemplate unless requested
• Removal from programs
• Isolation from particular meetings/gatherings
• Everything should remain as normal as
possible
• Nothing?

Scenario – Lisl & DuWayne
• Have been working long hours
together
• Head out to a bar afterwards
• Gets a little flirty
• Follow each other on Twitter,
Snapchat, Instagram
• Lisl makes flirty posts & tags
DuWayne in them
• DuWayne does not respond
• Suzy comes to you

Takeaways
• Investigations are tough
• Take a step back
• Consider
• Who is doing the investigation
• How you do it
• When you do it & in what order
• Prepare the findings &
recommendations
• Think about HOW you want to share
them

Kate Bischoff
(612) 361-7707
(320) 249-9269
@k8bischHRLaw
kbischoff@thrivelawconsulting.com
thrivelawconsulting.com

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How Ascentis HR and Talent Management Can Help
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trainings to ensure your business is compliant.
• Easily access your employees training records, and send
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through our Talent Management portal
Recruiting &
Onboarding
Talent
Management
HR &
Benefits
Payroll
Time &
Attendance
Ascentis

COVID-19 Resources
Simplified updates and actionable insights to empower you.
Please share with your network
Organize. Humanize. Maximize.
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Contact Us
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www.ascentis.com
800.229.2713