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Posted in Employee Privacy Rights, Labor Law, Wage & Hour

By:  Vida L. Thomas

Conducting workplace investigations is not easy.  The process is filled with land mines that can trip up even the most experienced investigator.  Although there are many mistakes I’ve seen investigators make, these are the three most common.

Trap #1: Failing To Define The Investigation’s Scope Before You Begin.

Investigations are tricky things, and can take many unexpected twists and turns.  The complaining employee often may make one allegation in his/her verbal complaint to a supervisor, an additional allegation in his/her written complaint, and more allegations to you in the interview.  That complainant, or one of the witnesses, may produce a “laundry list” of issues they wish you to look into.   Are you obligated to investigate every complaint raised by employees?  Doing so would certainly increase the time and cost of the investigation.Vida Thomas 04_final

This is why, before you begin the investigation, it is important that you establish the investigation’s scope.  It is just as important to know what you are not investigating as what you are investigating.  What issues does the employee wish you to investigate?  On the other hand, what issues is the employer hiring you to investigate?  You may need to confer with the employer’s legal counsel for direction on which issues to look into.  If you don’t go through this sorting process at the beginning of the investigation, you run the risk of learning much later (possibly after you turn in your written report) that you did not investigate the matters the employer hired you to look into.

Trap #2: Reaching A Conclusion Too Soon (Also Known As “Confirmation Bias”).

It happens to the best of us: after talking to the complaining employee and a few of the percipient witnesses, a pretty clear picture begins to emerge.  You have a reliable hunch about what occurred but, of course, you’ll talk to the accused to get his/her side of the story.  The problem is, although you think you’re withholding judgment until after your interview with the accused, you’re already leaning toward a particular outcome.  And that predisposition may influence how you question, perceive and assess the accused.  That is the essence of “confirmation bias”: the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories.  We all engage in confirmation bias to some extent; indeed, taking mental shortcuts in decision making is efficient and sometimes necessary.  When conducting a workplace investigation, however, confirmation bias can lead us to an incorrect conclusion.  Without realizing it, we may overlook or discount evidence that contradicts our early hunch or gut instinct.

How can you minimize confirmation bias?  Keep an open mind throughout the investigation.  Accept, review and weigh all of the evidence.  When you reach a conclusion, ask yourself: Did I come across any evidence that contradicts this conclusion?  If so, what is the reason for discounting that contradictory evidence?  Taking these steps will go a long way to help ensure that your conclusion is based on the evidence, not your preconceptions.

Trap #3: Failing To Follow Up.

Investigations are almost always conducted under a tight timeline.  You will feel under constant pressure to “wrap things up” quickly.  So what do you do if the witnesses contradict each other on a key issue, or if the respondent gives you information that undermines the complainant’s credibility or raises further questions that need to be answered?  With looming deadlines in mind, you may be tempted to simply leave these contradictions or unanswered questions unresolved in order to reach a conclusion sooner.

Remember, however, that you have a legal obligation to conduct a thorough investigation.  This means that you may need to conduct follow-up interviews with witnesses to see if you can clear up the contradiction.  Or you may need to follow-up with the complainant, to give him/her the opportunity to respond to the new information.  Follow-up interviews can be a very helpful tool.  They can give you a deeper understanding of the evidence, and strengthen your findings.

Improve Your Investigation Skills

Delve into these three investigation traps, and much more, in our upcoming training class.  Attorneys from Weintraub Tobin’s Workplace Investigations Unit (Vida Thomas and Beth West) will conduct a one-day, in-depth training on conducting effective workplace investigations on March 3, 2016.  For more details and the cost of this training session, please click here.