September 20, 2020

Volume X, Number 264

September 18, 2020

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The Importance of Developing an Investigation Plan

The importance of a prompt and thorough internal investigation is more evident than ever, and an effective investigation plan can protect the company’s interests when reviewing internal complaints.  Consider the following when developing an investigation plan.

Take Necessary Immediate Action: When receiving a complaint, outline the issues involved to determine if there are any necessary immediate action items. Should the company separate the employees involved (e.g., implement schedule changes or a leave of absence, with an eye toward avoiding negative action against the complainant)? Is there threat of imminent harm to an individual? Will the investigation be compromised if the company does not take immediate action?

Review: Review applicable policies (e.g., harassment, work rules, progressive discipline) and company practices related to the outlined issues. Review personnel files and other documents to assess whether there is a history of improper conduct, similar complaints in the past, and information relating to motive or bias.

Identify An Investigator: Who has experience and/or training for this particular complaint? Consider whether the identified investigator is directly or indirectly involved with the complaint. Is the individual a close friend of or in a subordinate position to the complainant or the accused? If yes, the investigator may not be perceived as objective. Will the investigator be an effective witness in future administrative or civil proceedings? Is the investigator knowledgeable of company policies? Depending on the circumstances, assistance from an outside investigator or legal counsel may be necessary. Consider whether there are threats of legal action, serious acts, previous lawsuits by the complainant, or whether the company failed to act on prior known complaints.

Develop An Interview Strategy: At the onset, identify key witnesses, when and where to conduct each interview (off-site, in private, conference room), and prepare a list of questions for each interviewee. Reference the outline of issues to ensure questions are tailored to elicit critical information and details associated with each issue. Anticipate that the witness list may be subject to change as the interviews progress. If necessary, witnesses may also be taken out of order and questions may be modified.

Preserve Evidence: Through the course of an investigation, key documents, files, audio and visual recordings may be identified. Take measures to preserve these sources of information as needed. In light of potential allegations of cyberbullying and harassment, ask an employee if they are willing and able to provide a copy of any purported harassing or discriminatory on-line post or text message. Further, ask the employee to retain the information until otherwise informed. Document such a request in the investigation plan.

With these investigation plan practices in mind, the company may be better prepared to resolve workplace disputes and establish it conducted a reasonable, good faith investigation.

Jackson Lewis P.C. © 2020National Law Review, Volume IX, Number 303

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About this Author

Sarah J. Ryan, Jackson Lewis Law Firm, Labor Employment Attorney
Principal

Sarah J. Ryan is a Principal in the Portland, Oregon, office of Jackson Lewis P.C. She joined Jackson Lewis in late 2012 following over 25 years of employment and litigation practice in Portland, Oregon. Prior to joining the firm, Ms. Ryan chaired the Labor and Employment law practice group at a regional firm with four offices in three states.

Ms. Ryan represents some of Oregon’s leading employers and provides counsel and litigation services in general employment law, as well as a wide range of employee relations issues. Ms...

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Elisabeth Whittemore Employment Attorney Jackson Lewis
Associate

Elisabeth F. Whittemore is an Associate in the Orange County, California, office of Jackson Lewis P.C. 

Mrs. Whittemore represents management in all types of employment disputes including harassment, discrimination, retaliation, and wrongful termination cases in both state and federal court, as well as in arbitration and administrative hearings.  She routinely provides preventative advice and counsel on a variety of workplace law and compliance matters. 

Prior to joining Jackson Lewis, Mrs. Whittemore served for almost two years as a judicial law clerk to the Honorable Kenneth J. Gonzales, United States District Judge for the United States District Court of New Mexico. Before her federal clerkship, Mrs. Whittemore served as a judicial law clerk to the Honorable Steven L. Dobrescu and the Honorable Gary D. Fairman, of the Seventh Judicial District Court of Nevada.

During law school, Mrs. Whittemore was a teaching assistant and an Articles Editor for the Lewis & Clark Law Review. She also worked as a certified student attorney representing indigent clients in state court and administrative hearings.

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