Workplace Investigation Tip: Other Evidence to Consider
The success or failure of any investigation often can hinge on additional evidence that employers fail to consider. As many of you know, we conduct workplace investigations based on claims of harassment or wrongful termination. Whether we conduct the investigation, or you, make sure you always have copies of relevant organization policies readily available for quick reference. In addition, be sure you have reviewed them prior to your meetings with the complaining party, the accused harasser, or any witnesses that need to be interviewed. Plan and execute a comprehensive search of the computers, lockers, and files of employees (if necessary) and videos. Create a checklist to ensure you do not miss anything.
Forms of additional evidence you may gather include
• employee files and evaluations,
• incident reports,
• procedure manuals, flow charts, etc.,
• e-mail or any other computer files,
• managers’ files,
• notes of any kind,
• police reports,
• pictures, charts, data, and statistics,
• project files, and
• performance ratings and criteria.
• Company cell phone records (if applicable to the circumstances)
When gathering such evidence, you may find much of it difficult to retrieve. The organization may be working with forensic experts to retrieve digital files. When requesting evidence, be prepared to explain what you hope the information will provide. What kind of light will the evidence shine on the questions in front of you?
When you have the documentary evidence, be sure to confirm its authenticity with the witnesses where relevant. For example, if an employee is accused of sending out e-mails in violation of company policy, you must present the e-mail to the employee and ask him or her if she recognizes it and, in fact, sent it. It may be possible that someone else gained access to the alleged harasser’s e-mail account and sent out the e-mails. As you can see, it’s not as simple as asking if the accused sent out an e-mail. Did she write it? Did someone else have access to her account? If so, did she ever report this? When was the last time she changed her password? Did she receive similar e-mails from others? By clearly delving into the facts, a seemingly simple investigation can yield a variety of complex issues.
A couple of final points are: one, remember that the “alleged harasser” is just that. Do not make assumptions that the person is guilty until you have all of the facts and two, document as if your notes will be carried into court by both sides. Be as clear as possible because you may have to explain them one day in a court of law.