Launching Investigations in the #MeToo Era

Back in mid October we were fortunate enough to once again be joined by Orrick Partner, Lisa Lupion, who facilitated dialogue on addressing workplace harassment. What began as a social media movement initiated on twitter, #MeToo has sparked conversation, awareness and resulted in the hyper-focus on inappropriate conduct, especially in the workplace, resulting in employers developing polices and procedures that support their courses of action to address harassment.

With the mandated anti-harassment trainings, more and more employees are coming forward with concerns and allegations. While education and awareness is power, and coming forward can effect change, employers need to know what they can do to appropriately address allegations.

Below are ten steps that were covered in our discussion:

  1. Decide who will conduct the investigation: Will HR or in-house counsel conduct the investigation, or will it be handed off to a third party investigator or external counsel?
  2. Develop an investigation plan: Determine who will be interviewed, what questions are to be asked and what documentation will support the investigation. Where will meetings/interviews be held and how far in advance will you schedule them while still ensuring that they are conducted in a timely manner? It’s important to remember that giving too much of a heads up to an employee can cause implications and in some cases it can be beneficial to the investigation not to give too much time between the notice and the actual meeting. Take details notes and make sure writing is legible, if not type them. If you hand write notes and then type them, you may need to keep the original in a safe place. If you copy notes onto the computer verbatim, you’re more safe to throw the originals away but if you summarized your hand written notes on the computer, it’s best to keep a copy of the original notes.
  3. Develop a chronology of events: Keep track of the series of events based on stories given while keeping in mind that this may be discoverable.
  4. Develop your “opening statement”: Before sitting down with an alleged wrongdoer, determine how you will approach them. Have your list of questions ready. Do not accuse, but rather begin by stating you are looking to collect the full story and are committed to a thorough investigation and expect full cooperation in order to do your fact-finding. Remind he/she/they that the company prohibits retaliation and that in the best interest and to maintain integrity of the investigation, it’s encouraged not to speak with anyone else regarding the investigation.
  5. Interview Complainant: When an employee comes to you with a complaint, it is important not to make statements like “that’s so terrible”, “I can’t believe that happened to you”, or any other statements that imply that you are taking sides.  While the individual may feel upset, both parties need to be interviewed and all facts must be taken into consideration before coming to a conclusion. With that said, encourage the employee to share all the information they can, advise of anti-retaliation policies, identify what outcome the complainant desires, and identify your witnesses as well as necessary documents to interview and review.  Some times, complainants want to come forward anonymously or ask claims to be kept confidential but before they share, inform them that you appreciate that they are coming to speak with you, you’re not sure what they are going to say but depending on the nature of the claim, anonymity may not be possible.
  6. Interview alleged wrongdoer: Do not come forth with an accusing tone. Share that there was a complaint and you’d like to get all of the information that you can regarding all allegations. Often times, the alleged wrongdoer asks who made the complaint/ accusation. It’s important to advise employees of the companies anti-retaliation policy. The alleged wrongdoer may ask if they need an attorney or demands an attorney. This can cause some problems and a way to handle this is to say that this process is simply for fact finding and does not involve any legal proceedings at this time. It doesn’t reflect well if a company denies an employee legal counsel if they feel they want or need it. This investigation process is to determine if company policy was violated, not if a law was violated.
  7. Interview witnesses: Disclose the purpose of the interview, the role of the investigator, the role of the witness and the need for truthfulness along with the anti-retaliation policy. Encourage confidentiality.
  8. Conduct Follow up: You may decide to do follow-ups with each person you’ve interviewed. Review appropriate documents that are relevant to the investigation. Clean up notes if necessary and keep the complainant informed of the status of the investigation- do not go radio silent on them! This lets them know you take their complaint seriously.
  9. Reach determinations: After reviewing all facts, notes, documents and thoroughly investigating the claim, draw a conclusion. Remember, you are not determining if a law was violated, you are focusing on if a company policy was violated. You may conclude a) there was a violation of company policy, b) there was no violation of company policy or c) there is insufficient evidence to determine if there is a violation of company policy. Don’t forget to document your conclusion and a summary reflecting the outcome of the investigation.
  10. Inform all parties & follow ups: meet with complainant and explain what conclusion was determined. You do not have to share what action will be taken, but ensure that action taken will align with the inappropriate behavior that was conducted. Document all discipline and remind all parties of anti-retaliation policies.

Some investigations can be quick and swift, others may take some more time to gather and analyze facts. While it’s not possible to know how long an investigation will take, and other things certainly come up, having a plan in place can help. While the investigation plan is important, it’s also important not to lose sight of how the investigation may impact the organization or the litigation risks.

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