In a prior posts, we wrote about why you may need an internal investigation, who should conduct the investigation, and the planning and conduct of the investigation. In this post, we will discuss documenting and following-up on the investigation.
Documenting the investigation is crucial – the work isn’t done until the paperwork is completed. You must evaluate the facts you discovered and determine the merits of the complaint. Segregate the facts into disputed and undisputed facts. Can you reach a decision solely by looking at the undisputed facts? If so, you do not need to move forward and consider the disputed facts. Review the witness statements and determine whether the statements were consistent. Where inconsistencies exist, consider whether a witness had any reason to be less than truthful. Do documents support one side or the other? In assessing the credibility of the statements, consider additional factors such as prior incidents that may reflect on credibility, the witnesses’ motives, demeanor and plausibility. Generally, you will find that when conflicting evidence exists, one version of the events is more plausible than the other. If does not mean that the less plausible version could not happen, only that it is less likely.
After you have gathered and examined the facts and reached your conclusion, have someone else review the facts and conclusions. A fresh set of eyes will point out missing evidence, conclusions not supported by the evidence, and may have alternative conclusions.
Once you have determined what likely happened, you must apply the conclusions to determine if misconduct did in fact occur. The application will depend on the nature of the alleged misconduct – why you are investigating the complaint. Are company policies at issue, regulatory requirements, and/or statutes? Application to the governing rules will determine whether or not you have misconduct (or if the existence of misconduct is unknown).
The finding, conclusions, and application should be reported to the decision makers for action. As to the employees, the accuser must be protected from retaliation, the target may be subject to discipline, and some (or all) employees may need training. Action will take many forms and depends largely on the circumstances. Several factors should be considered: The seriousness and frequency of the conduct; the employment record of the individuals involved; the discipline imposed for other similar actions; and whether other company policies may relate to the situation (such as a policy of progressive disciple). The institution may require the review and modification of general company procedures.
Regardless of what action will be taken, it must be communicated to the complainant so they understand and are prepared for the action to be taken. Details of the investigation results and disciplinary action taken generally should only be provided to those people who need to know. But disclosure of the general nature of the investigation results provides an excellent opportunity to reinforce the employer’s anti-harassment, anti-discrimination, business ethics and other employment policies.
Proper follow-up may also require reporting the results to governmental or regulatory agencies. The intricacies of voluntary disclosures and the impact on regulatory officials is beyond the scope of this article. But generally, voluntary disclosure may result in decreased civil penalties and decreased likelihood of criminal prosecution. However, the outcome is not guaranteed, and the voluntary disclosure will alert the government to the problem and may involve costs and resources that distract from the institution’s business.
We could not presume to provide a definitive guide on how to document an investigation and apply remedial provisions following the investigation. For a thorough discussion of these issues, or if you have other questions on how to best protect your company, please contact Bill Bock or Steve Runyan of our Investigation and Crisis Management Team, or one of our attorney’s here. It would be our pleasure to assist you.