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Don’t Worry, Just Follow Right Investigation Protocol

By Allen Smith  6/25/2012
 

ATLANTA—“Quit your sniveling and get back to work.”

“Are we in junior high?”

These may be your first reactions when it’s time to respond to another workplace complaint, but they aren’t the questions you’ll need to ask to get the investigation right.

Only following the proper procedures will give you, your employees and courts confidence that an investigation was conducted in good faith, according to Glen Kraemer, an attorney with Curiale Hirschfeld Kraemer LLP in Santa Monica, Calif., at a preconference workshop of the Society for Human Resource Management 2012 Annual Conference on June 24, 2012.

Don’t aim too high, he cautioned. “The worst thing you can do is expand the investigation” when a narrower investigation would have sufficed, he cautioned. “You should not have to worry that you’ll be absolutely right” or keep searching until you find the smoking gun.

Instead, rely on the right process. That doesn’t mean that HR won’t reach a conclusion after the investigation. “Do not be afraid to reach a conclusion because you’re afraid you’ll be wrong,” he said.  

Initial Meeting

The first step in the grievance procedure process is the initial meeting with the claimant, which Kraemer said is a misnomer. “It’s the initial assault by the claimant,” he joked.

Don’t expect for it to happen at a time that’s convenient for HR, he added. Instead, the initial meeting is likelier to happen on a Friday afternoon as you’re getting ready to leave for a trip.

Often, claimants are afraid they will be retaliated against by stepping forward, and say they don’t want you to do anything about their concerns.

But of course HR will need to do something about a complaint. The first decision is whether to conduct a formal investigation or just have an informal response. 

Interviews

If an investigation is launched, try to talk first to the person with the most knowledge of the claim, Kraemer recommended. That typically is the claimant.

Then interview the next most knowledgeable person, which usually is the accused. Show sensitivity toward the accused when interviewing him or her, and put that person at ease. Stress that no conclusions have been reached, he added.

Consider too whether the accused should be placed on administrative leave, and whether placing the person on leave would make things in the workforce worse or better. In addition to consulting with legal counsel, HR may need to consult with security in cases that involve violence, he noted.

An investigator next may turn to witnesses. But keep in mind that deciding the order of who to interview is more of an art than science, he added, saying HR should be ready to defend its reasons for the sequence of interviews.

In interviews, offer a general time frame for investigations, encourage the supplying of facts, stress the need for confidentiality and emphasize that there will be no retaliation.

Above all else, when conducting investigations, Kraemer said HR should “care less about truth than the perception of fairness.”

Allen Smith, J.D., is manager, workplace law content, for SHRM.

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