ANAHEIM, Calif.-HR executives at CUs are being urged to investigate every complaint, large or small.
Aaron Zandy, a lawyer with the firm Ford & Harrison in Orlando, told the CUNA HR/TD Council Conference that workplace investigations are necessary to protect all types of companies. Complaints could include a hostile work environment, sexual harrassment, favoritism or retaliation.
"It is obvious a written complaint warrants an investigation, but even something as simple as an offhand remark overheard by a supervisor or something after-hours must be investigated," he said. "The fact a supervisor is 'friends' with an employee is not a defense. If the employee and the supervisor are at Happy Hour and the employee says something about the workplace, there is a duty to investigate."
Supervisors and managers can be the key to whether a credit union is sued or not sued. But selecting the investigator can be tricky, he noted, because HR is not always the best option. The "best" investigator is whoever will get the facts, Zandy advised.
"The interviewer must have knowledge of company policies and practices, and applicable legal issues," he said. "Also, that person must keep accurate and thorough notes that can be used as evidence in case of a trial."
Investigation Blueprint
At the start of an investigation, Zandy recommends someone prepare an outline/timeline that includes each step that will be taken and the expected completion date. He said it is important to recognize that chronology and order of interviews can either contaminate or enhance success of the investigation. Interviews must be consistent, he added.
Any time a document is mentioned that could potentially impact the case, Zandy said it is vital to obtain a copy. This includes all pertinent e-mails or Facebook posts-print them out.
When interviewing, Zandy recommends beginning with broad, open-ended questions-a technique known as taking the funnel approach. Later, transition to the specific situation at issue. Ask if the witness is hostile or friendly to either the complainant or alleged wrong-doer.
"After the standard questions, always ask every witness if there is something else they want to share, or if they know of other witnesses-this is all part of a thorough investigation."
The interviewer should not accept non-specific words or phrases, such as "dirty talk" or "inappropriate language," he said, adding it is important to get specific details with follow-up questions.
The Critical Documents
At the end of each interview, the investigator should summarize what the witness said to ensure understanding on both sides. Next, Zandy said to prepare formal witness statements promptly, to ensure all details are captured. Each witness must be asked to verify the accuracy of the witness statement, make and necessary changes, and then sign and date.
"These witness statements are critical documents in any case that goes before a jury," he said. "Keep in mind during the course of an investigation the EEOC says the investigator has the obligation to judge credibility. Look for corroborating evidence, how one person's version of events differed from another's."
There are certain situations where recording an interview is necessary, Zandy noted. His recommended standard procedure is to always start with date, time and place of interview, name of participants, and witness affirming his/her knowledge of and consent to the recording. Repeat and re-verify consent at conclusion of the interview.
"After the investigation, inform participants of the resolution, take steps to ensure no retaliation is taken, encourage complaining employee to bring all issues forward in future and continue monitoring the situation," he said.
