Best practices to recommend to conduct a successful investigation? Common problems for Clients?

The following article discusses session two in the IR Global Virtual Series on ' Workplace Investigations: Process and enforcement in the age of #MeToo

France – LP The
investigation must be led under very strong confidentiality because at the
beginning nobody knows if the facts are true or not.

So it must be impartial, confidential and very carefully
led, because the procedure must be followed, if there is a procedure, and if
there is no procedure provided by any policy or internal regulations, it must
be shown in case of litigation that every trustee under immediate investigation
was led impartially and that everyone has been heard.

So, the process is to gather evidence about the suspect,
interviewing the victim and the whistle blower, then the alleged aggressor,
hearing every person who could lead to the truth, including witnesses. The most
important will be to get enough precise facts and evidence before interviewing
the alleged aggressor.

It is not mandatory to hear every single employee, but just
every witness or any person that could quickly help to find the truth. There is
no obligation to lead the investigation with the assistance of staff representatives,
but, as they are entitled to be alerted, they could take part in the
investigation.

Since the first of January of this year, every single
company employing more than 250 employees has to designate a point of contact
who should be alerted in case of sexual harassment or sexual aggression. This
person may carry out prevention measures, orient victims to the right persons
or conduct the investigation further to a complaint.

Nevada – LT An
absolute key requirement is that any investigation occurs promptly. This is not
something that you can sit back and wait on. As soon as a complaint comes in,
you need to get started right away. That's a legal obligation.

One of the critical decisions that has to be made early on
is whether the investigation will be handled by somebody on the inside or
somebody on the outside of a company. There are benefits to both approaches and
sometimes it's driven by the capacity within the organisation, and who an
employer has available to do this type of investigation.

I would say it needs to be somebody who's experienced and
who can keep an open mind and maintain fairness during the process. If you
don't have anybody within your organisation who has conducted this type of
investigation, they should not handle it, since botched investigations can
create serious liability for employers.

Generally, you bring in the complaining employee first and
ask; who, what, where, when, why, etc., and any follow-up question, and gather
any documents, recordings, photos, text messages or other evidence. This allows
you to gather as much detail as possible from the complainant before
interviewing other witnesses.

Getting background on the interactions with the accused
prior to the complaint is also valuable. Detailed notes of all interviews are
essential. Usually I tell my clients that there should be two people in the
room, one person who's a note taker and then the investigator who's actually
asking the questions. Usually I tell my clients that there should be two people
in the room, one person who's a note taker and then the investigator who's
actually asking the questions.

I usually recommend that the investigator prepare the
written notes before the witness, the complaining party or the accused leaves
the interview. It is best to have the person being interviewed, look at the
notes that were generated from their interview, have them read them and then
sign them at the bottom and say that they agree with the contents. Those notes
are likely to be discoverable and could be used in any subsequent litigation. I
don't typically like my clients to record the interview sessions, and usually
prefer the written notes signed by the employee instead.

From there you follow the trail with other witnesses and
listen closely to the issues raised. Don't prejudge if you need to take an
interim step to keep the accuser and the accused apart during this process, you
should process. You should also assure everyone of confidentiality and no
retaliation.

It's also a good idea to request that the employees who are
being interviewed not discuss the investigation or underlying facts with others
in the workplace to avoid having such conversations affect other witnesses’
memories and perceptions of events. It’s generally best for the integrity of
the investigation that the investigator talks with witnesses before they've
heard about the issues and allegations from somebody else.

California – RT I
don't think there are many differences in California with a few exceptions.

There is a Penal Code section that does not permit
recordings without an individual’s consent, so I don't recommend recording
interviews of California employees. It is possible with express consent, but I
agree with Laura that written notes are more than adequate.

Prior to #MeToo , an employer’s decision to use either an
internal investigator or an outside investigator was based primarily on the
severity of the allegations and speculation as to whether there might be a
lawsuit, with outside investigators used primarily when the employer or counsel
considered a lawsuit likely. Employers currently use outside investigators more
often, for the very reason that Laura pointed out, that it's necessary for the
person doing the investigation to have experience conducting investigations,
and perhaps a greater fear of impending lawsuits among employers. Most managers
and many internal human resources personnel lack experience in conducting
effective workplace investigations. In California, employers relying on outside
investigators must either use legal counsel or a licensed investigator.

One of the questions that often comes up is the issue of
confidentiality. People sometimes make a complaint to a manager and say they
want to keep the issue confidential.

The compelling obligation on employers to investigate limits
the ability of an employer to keep a complaint confidential. It would be
practically impossible to investigate if management kept complaints completely
confidential.

So, the preferred response if an employee comes forward with
a complaint of harassment, is for the manager or the HR professional to tell
the employees that they can keep the complaint confidential on a need-to-know
basis. This, of course, means they couldn’t keep it fully confidential, because
the organisation has an obligation to investigate and take effective remedial
action that will stop it from ever occurring again.

There also is authority that determines whether employees
can be told not to communicate about their meeting with the investigator as
they go through the investigation process. The two-pronged guidance on this
particular issue is that managers may be told to keep an investigation
confidential on a need-to-know basis.

In contrast, non-management employees should not be
instructed to keep the fact of the interviews or their content confidential.
This would impact the overall awareness in an organisation about the
investigation process, as a result.

Nevada – LT Under
Nevada law, we don't have quite the same confidentiality issues as in
California but, under US federal law, overly broad statements/restrictions on
the issue of confidentiality are problematic.

The employer, under the National Labour Relations Act, would
have to state a legitimate reason for asking for confidentiality. When I talk
to my clients about this, I basically recommend that they frame it as a request
to the employee that they keep the matter confidential, as opposed to a mandate
prohibiting them from discussing it. The investigator can say something like,
“we would prefer that this be kept confidential so we can have the opportunity
to thoroughly investigate,” but without actually mandating it.

If a non-management employee were to disregard this request
and share information about the investigation or underlying facts with others,
it could be protected conduct under the National Labour Relations Act. Because
of this, I would generally tell my clients, absent some egregious circumstance,
not to discipline the employee for the alleged breach of confidentiality, even
though it's not ideal in terms of the investigator actually getting to the
truth of what happened.

Minnesota – AR
Many employers in the US are moving well beyond a focus on harassment
specifically and engaging in concerted discussions to evaluate and define for
their particular businesses the overall corporate culture and corporate code of
conduct that they wish to establish and promote.

Companies can actually promote the desired message regarding
corporate culture in the manner in which they receive complaints of harassment,
conduct the investigations, and the manner in which they communicate with the
concerned parties throughout the process.

Most would agree that, in the #MeToo environment, companies
serious about risk management and prevention will seek to promote an
environment where employees are encouraged to speak up and bring concerns to
the attention of appropriate persons within the organisation without fear of
retaliation, so that the company may investigate and respond.

Thus, executives, managers and other leaders within the
organisation should be prepared to stop whatever they are doing and take the
time to listen, should concerns regarding potential harassment be brought
directly or indirectly to their attention. They should also communicate to the
individual that the organisation takes these concerns seriously and that the
concern will be brought to the attention of the human resources professionals,
or others within the organisation charged with responding to the concerns.

In terms of the investigation itself, there are numerous
considerations. Companies should respond promptly and act promptly, but not
without carefully considering the best possible approach given the particular
complaint, context, and those involved and who is being accursed. Some of the
many considerations for an effective and successful investigation include:

• Determining who should investigate. Should the
investigator be an internal, trained human resources professional, or an
outside investigator? Should the organisation involve its internal or external
legal counsel and at what point in the process? What is the
strategy/communication plan in the event of potential media attention?

• Determining before the first interview (and then
periodically during the process, depending on the information obtained) who
should be interviewed, where should the interviews be conducted and in what
order.

• Ensuring that the investigator is a trained, experienced
individual and that he/she conducts the interviews and the investigation in a
respectful, fair and impartial manner.

• Ensuring that there are accurate and legible notes/written
records of the interviews, and that all documents, communications and
recordings, where applicable, are collected, preserved and reviewed.

• Determining whether a formal written report of the
investigation and/or its conclusions should be prepared.

• Determining who should make the decision regarding any
action taken as a result of the investigation and who should effect/communicate
the action.

England – SS
There are a lot of similarities in terms of what we have to be concerned with
in England.

I think there's an inherent tension between the desire for
confidentiality and discretion and the imperative to take action. That is true
whether the request for discretion is coming from the complainant, or from the
employer who wants to keep it under wraps.

In terms of best practices, there's five points that I would
briefly touch on which probably apply to most jurisdictions.

The first thing, as we've already heard, is confidentiality.
Proceeding with discretion is paramount here, but at the same time, you do need
enough information to be able to investigate. This is the case whether the
complaint is anonymous, or where the complainant is known. You do need to know who
it is that is supposed to have committed the alleged harassment. So, although
discretion is important a degree of visibility is also necessary.

The second thing is a major question as to how the
investigation should be undertaken and by whom, depending on the seriousness.
In the English jurisdiction, an employer will ordinarily investigate the
complaint or grievance themselves. But for a more serious complaint, my
recommendation is almost always to go for a suitably qualified external
advisor. This is someone who can investigate and report with objectivity.

The third point I would make, is that it's very important to
ensure that the complainant is safeguarded and there are no repercussions
whatsoever against the persons who have come forward. This feeds into the
fourth point, which is the importance of recognising the rights of the accused
employee. Even if the accused individual is suspended temporarily pending the
outcome of the investigation, there must be no conclusions drawn prematurely.

The last point is also vitally important, which is that the
investigator should be aware that they are generating evidence. Certainly, in
the English jurisdiction, this evidence could be used for the purposes of
litigation or in an employment tribunal. This is often one more reason to
outsource the investigation, because the witness statements that are generated
may show up in disclosure or further witness evidence down the line if the
matter isn't resolved, or if it triggers claims of unfair dismissal, sexual
harassment or discrimination.

Germany – DSS
When a German employer faces a complaint, they have to start the investigations
as quickly as possible and determine the facts. When it comes to those
investigative measures, the employer should find answers to three questions.

Did the sexual harassment occur? Under what circumstances
did the sexual harassment occur? How serious was the incident?

Depending on the answers to these questions, the employer
will have to decide how to deal with the incident, because it goes without
saying that criminal conduct requires different action than something more
minor.

In Germany, there are no professional investigators other
than the police or the state prosecutor, so most employers deal with those
complaints themselves. Investigations usually start with a detailed interview
of the affected person, which has to be very confidential and should always be
undertaken by two persons – one investigating and the other one taking detailed
notes.

After that, the employer should present the accused person
with the accusations and give them an opportunity to comment on these. Usually
the accused person will consult a lawyer, which will also involve further time.
The employer will always have to safeguard the personal rights, both of the
accused person and of the person affected, but, once the interviews have been
done, the employer must decide whether to check emails or even phone data.

Sometimes those investigations will occur together with a
Works Council, and we recommend our clients follow five golden rules when it
comes to these investigations.

Firstly, always interview the person affected and the person
accused with two people, one investigating and the other one taking detailed
notes. Secondly, document all investigation steps and preliminary results,
which can be very useful for a court procedure. Thirdly, always keep the number
of people involved very small, because the whole topic should be very
confidential and the public shouldn’t be involved.

Fourthly, we suggest clients carry out investigations as
quickly as possible, because otherwise the employer faces the risk of losing
the right to terminate without notice. There's a two-week notice period when it
comes to a termination without notice, which is very crucial in Germany.

Last, but not least, we suggest a lawyer is consulted to run
through the different measures available once the investigation has been
completed.

Switzerland – MN
I would like to add one element of consideration that we haven't spoken about
yet, which is the size of the company. Depending on whether or not you dealing
with a large corporation or a small corporation, there may or may not be the
specialists in-house to be able to conduct a formal internal investigation.

It is also quite important to ensure that the person who is
conducting the internal investigation is actually qualified or has the training
to do this kind of investigation, obviously, because they are extremely
delicate. Not only is this the case for the victim who is exposed, but also for
the potential wrongdoer who may or may not be accused unjustly. In addition,
Switzerland does not recognise legal privilege for in-house counsel. Anything
that is disclosed in an internal investigation, as Shilpen already mentioned,
would be generating evidence and would need to be handed over to the
authorities.

In terms of the internal investigation itself, it is very
important to explicitly state that it is a formal investigation and put a
protocol in place for the meetings both with the victim and the potential
wrongdoer.

The accused wrongdoer must be confronted with the
accusations made by the victim and given an opportunity to also present
exonerating evidence, because there are usually two sides to the story.
Employees do have to cooperate with these procedures, and are obliged to put up
with internal investigations and legal questioning.

Switzerland still has a very high tolerance level when it
comes to sexual harassment, meaning these investigations are not frequent. What
often happens, is that, as soon as there is a claim from a victim, there is
retaliation from the accused wrongdoer, via a libel or defamation claim.
Usually, if this happens, the libel or defamation proceeding is generally
stayed until the formal investigation has been completed.

Keeping the number of people involved to a minimum, is seen
as good practice. It is very important to train and educate employees to make
sure that they understand the process and what rights they have during an
investigation, but also what the consequences will be.

The employer must act very quickly if there is an immediate
dismissal of the wrongdoer. Employers only have two to three days after having
become aware of all the information and facts, to dismiss a wrongdoer.

Netherlands – RJ
In The Netherlands, there is no legal obligation prescribed by mandatory laws
for employers to have a complaint policy, or even to have appointed a trusted
person within the company.

What is relevant is that complaints are dealt with
adequately and, most importantly, that both parties get a chance to be heard.
Proper measures should be taken to ensure this.

Even if the law does not oblige companies to have a policy
in place, it is highly recommended, and we advise our clients to have such a
policy in place and to ensure that it is followed meticulously.

The downside is that if you have a policy and you don't
follow it, it is an indicator that the employer has not fulfilled its duty of
care to create a safe environment for their employees.

Having a complaints procedure in place, does create evidence
of fulfilling such obligations, and it can offer the involved individuals, like
HR or the line managers, a road map as to how to deal with complaints in a
consistent manner.

Consistency is something that is very important, especially
if you are a bigger organisation where there are different individuals who are
responsible for dealing with any upcoming complaints. The more you are able to
create a consistent response to such situations, the stronger the process is.

The imperative to act quickly the moment that a complaint is
raised has already been mentioned. I agree with that approach, however in The
Netherlands we have also seen cases where employers were too quick in taking
action after having received the complaint and did not follow their own policy
properly.

Because of this, they were considered not to have fulfilled
their obligation of care towards the person that had been accused, because
there were not sufficient grounds to assume that inappropriate behaviour had
occurred.

As mentioned, from a statutory law perspective, we do not
have any guidelines, except for open norms as to how to deal with complaints.

The rulings given by The Netherlands Institute for Human
Rights are helpful though. They deal with complaints from individuals, unequal
treatment and sexual harassment, and are considered part of the unequal
treatment legislation in the Netherlands.

They provide a few points to consider when conducting an
adequate and diligent investigation procedure, including the fundamental
principle of hearing both parties. They also recommend that both parties must
be heard separately and not in the same meeting. Investigations must be
objective. There is no obligation to hire an external party or agency to
conduct the investigation but it is important that the investigators are
independent and competent.

We do have privately run investigation companies, however,
when they prepare a report, they generally provide such under the condition
that it is not made public and is not used in any court proceedings. This is
less effective, because, as an employer, you do want to use the outcome of the
investigation to take the appropriate measures, which may include dismissal.

Should the investigation have not been dealt with
adequately, it could be a reason for both parties to claim damages from the
employer. Raising a complaint can create huge reputational damage, not only for
the involved individuals, but also for the company itself. In that regard, it
is deemed important that the interviews with the involved individuals are put
in writing.

Contributors

Monika Naef (MN) DUFOUR – Advokatur – Switzerland www.irglobal.com/advisor/monika-naef

Anne Radolinski (AR) Fredrikson & Byron – U.S –
Minnesota www.irglobal.com/advisor/anne-m-radolinski

Rebecca Torrey (RT) Elkins Kalt Weintraub Reuben and
Gartside LLP – U.S – California www.irglobal.com/advisor/rebecca-torrey

Dr. Sebastian Schröder (DSS) AQUAN Rechtsanwälte – Germany www.aquan.com/lawyer-profiles/dr-sebastian-schroder/

Rachida el Johari (RJ) SAGIURE LEGAL® – Netherlands www.irglobal.com/advisor/rachida-el-johari

Lionel Paraire (LP) Galion – France www.irglobal.com/advisor/lionel-paraire

Shilpen Savani (SS) gunnercooke llp – England www.irglobal.com/advisor/shilpen-savani

Laura Thalacker (LT) Hartwell Thalacker, LTD. – U.S – Nevada
www.irglobal.com/advisor/laura-thalacker

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