Originally published June 2013
Experience has shown us time and again that, of all the elements contributing to effective investigations, investigators consistently dedicate insufficient time and effort in a few critical areas; four to be exact.
Here’s the list, and some advice on how to avoid mistakes and do a better job:
1) Planning
Before any action is taken, before any phone call or interview takes place, take the time to plan. Not only is planning the foundation for success but investigators need to brainstorm and think about the kind of evidence that might determine if an allegation is true, false or somewhere in between. List all the places where background information and evidence might be found, such as access records to a company building, or someone’s calendar, expense reports or telephone records. List all the people who might have some information to share. List the internal policies or guidance that might cover the situation. Then, prioritize the ideas and determine the steps you’ll take and the order in which you’ll take them.
2) Searches for physical evidence
A decision in a lawsuit will be rendered, fact-by-fact and case-by-case. The threshold question will likely be “does a person have a reasonable expectation of privacy?” If a jury or judge determines that there’s a legitimate reason that 1) the search happened and 2) the search was done by a legitimate person, then the employee should have no expectation of privacy. Andy suggests that clear policies stating fact like “your computer is subject to search” will greatly diminish an employee’s expectation of privacy. If the company owns the item in question, there should be less privacy associated to a search. Your practices might also affect the expectation of privacy, e.g. many retailers search employees on a regular basis.
Courts will raise additional questions such as:
- Is the search nonetheless justified?
- How strong is your suspicion?
- How important is it to determine if the allegation is true?
- How intrusive is the search?’
Since every jury is different, there is legal risk associated to search. For that reason, investigators should always consult with counsel and have searches approved before conducting a search.
3) Accessing employees’ electronic and social media communications
This is an area where there is lots of legal uncertainty and jurisdictional differences. However, if a company is reviewing their own devices and the email and text messages stored on them, there’s some safe ground.
However, capturing email sent using company equipment where messages are not stored on company servers (such as Yahoo! or Gmail) is far less certain. And employees covered by the National Labor Relations Act are covered by recent NLRB decisions granting them rights to discuss terms of their employment in any outlet including social media.
Remember, your internal policies don’t override the law, so work closely with your legal counsel before you gather any evidence. Let them take the lead on this one.
4) Determining credibility
What makes a credible witness in an interview? It’s more than gut instinct. Investigators should consider the inherent plausibility of the answers (do they make sense?), the demeanor of the interviewee (including the totality of the response – body language, voice, speaking speed, tone, words chosen, pauses, etc.), corroboration by others, the interviewee’s past record and motive.
Your conclusions must be clearly stated in your report with statements that demonstrate how you drew your conclusions. It is legitimate for you to draw a conclusion; juries will draw conclusions. But you must include the reasons that support your conclusions in your report.
Separate and apart from mistakes investigators make, there’s always a question about discoverability and privilege. Always document everything in any case, and let your attorneys determine if the investigation should be conducted ‘under privilege.’ And before recording an interview, check with your attorney.
By Andrew Foose
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