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Investigations of Misconduct

As we all know, an organization must be prepared to conduct a prompt and thorough investigation anytime an employee alleges wrongdoing by another employee or the organization. Being able to establish that a prompt and thorough investigation was done may make the difference between winning or losing before the Equal Employment Opportunity Commission (EEOC) or a court. 

Although there are no hard and fast rules with regard to the manner in which an investigation involving claims of harassment should be conducted, generally speaking the proper course is for an organization to immediately contact its legal counsel prior to beginning the investigation. That said, the investigation must be PROMPT and an inability to speak with the organization’s attorney will not be a valid excuse for failing to conduct the investigation promptly. Organizations should also bear in mind there are special rules with regard to conducting investigations in unionized organizations covered by collective bargaining agreements; employees in non-union environment’s rights to request that others be present during the interview (i.e., Weingarten Rights); and/or who are public entities which must be discussed with legal counsel.

Subject to these qualifications, generally speaking it is appropriate for the individuals conducting the investigation to first interview the alleged victim of harassment; then the alleged harasser; and, finally, any other witnesses.

It is wise for organizations to be proactive regarding the investigation of misconduct. Here are links to sample checklists for interviewing an alleged victim, alleged harasser, and witnesses.

Sample Forms

Sample Checklist for Interviewing a Complainant Alleging Harassment

1. Introductory Statement

“Please come into my office and sit down. _____________ takes complaints of harassment very seriously, and I need to get as much information from you as possible so we can investigate and manage your complaint. Please relax. The purpose of our conversation is for me to gather facts and to find out what happened” 
[With two people present] “_____________ will take notes as you and I talk. This will allow me to focus on our conversation and not be distracted by taking notes at the same time.”

2. Discuss the Confidential Nature of the Investigation


“We will keep this matter as confidential as possible in light of the need to conduct a thorough investigation and only involve those with a need to know. We ask that you not discuss this matter with others, which will help preserve confidentiality.”

3. Explain the Organization’s Policy on Non-Retaliation.


“Our organization prohibits retaliation against any employee who makes a good faith complaint of harassment, so there should be no adverse consequences against you. If at any time you feel you are being retaliated against, please immediately come and see me, okay?”

4. With Respect to Each Incident, Ask

a. Who (name of alleged harasser)?

b. What specifically happened (Ask for details of what occurred, exactly what was said, type of gestures. If physical contact occurred, where were you touched and how many times)?

c. When did the incident occur (date, time of day)?

d. Where did the incident occur (If at the worksite, did it occur in an office, lunchroom, hallway, conference room, etc.; if away from the worksite, did it occur in a bar, restaurant, residence, hotel room, etc.) ?

e. What was your response to the incident at the time it occurred (What did you say and do and how did you feel about the incident)?

f. Were there any witnesses to the incident (If so, ask for names and what information each witness has about the incident)?

g. Did you tell this incident to any other employee (If so, who, what, when)

5. What is your relationship to the alleged harasser (stranger, friend, co-worker, third-party work associate, vendor, former relationship, enemy)?

6. Do you have any gifts, notes, letters, books, email messages, voice mail messages, cartoons, etc. given to you by the alleged harasser?

7. Do you know of any other person who has experienced problems with this alleged harasser (If so, ask for the names of the victims and what happened to them)?

8. Have you told me everything?

9. Please call me if you think of anything else to tell me or if you have any questions.

10. Explain the steps you will take next and your follow-up plans.

11. Consider, after consultation with your legal counsel, requesting that the employee write down a detailed description of what happened and give it to you. 
“It would be very helpful if you could put your description of what happened in writing in as much detail as possible. I want to make sure that my notes are accurate, and the best way to do that is to have you put your thoughts in writing. Would you do that? Can you get it to me by ___________?”

12. Thank employee for his/her time and for bringing the matter to your attention.

13. Tell employee that you will get back with him or her regarding the outcome of the investigation once it is completed.


Sample Checklist for Interviewing the Alleged Harasser

1. Introductory Statement: To call and set up the meeting: (meeting must be arranged promptly after receiving the complaint). 
“I need to talk to you about a human resources matter.” At the meeting: 
“We have had a complaint about harassment and we are conducting an investigation. Please relax. The purpose of our conversation is for me to gather facts and to find out what happened” 
[With two people present] ___________ is here to take notes so that I can focus on our discussion without the distraction of taking notes at the same time.”

2. Discuss the Confidential Nature of the Investigation. “We will keep this matter as confidential as possible in light of the need to conduct a thorough investigation. Please don’t discuss this matter with others, which will help us preserve confidentiality.”

3. Provide a brief summary of the complaint received.

4. Did this happen?

5. Tell me your side of the story:

a. Who?

b. What specifically happened (details of what occurred, exactly what was said, gestures, physical contact)?

c. When did the incident occur (date, time of day)?

d. Where did the incident occur (If at the worksite, did it occur in an office, lunchroom, hallway, conference room, etc.)?

e. What was the complainant’s response to the incident at the time it occurred (What did the complainant say to you? How did the complainant react)?

f. Were there any witnesses to the incident (If so, ask for names and what information the witness has about the incident.)?

6. Do you know why the complainant would say this about you?

7. Do you have any gifts, notes, letters, books, email messages, voice mail messages, cartoons, etc. that the complainant gave to you?

8. Have you told me everything?

9. Please call me if you think of anything else to tell me or if you have any questions.

10. Explain the Organization’s Policy on Non-Retaliation.

“Our organization prohibits retaliation against any employee who makes a good faith complaint of harassment or who participates as a witness in the investigation. In light of our policy, please do not talk to the complainant or make any inquiries of other employees about the investigation. In view of the fact that a complaint has been filed, it is very important that you not do anything that might be construed as retaliation against anyone who may be participating in the investigation.”

11. Explain the steps you will take next and your follow-up plans.

12. Decide whether the organization needs to take any immediate corrective action such as suspending the alleged harasser pending the outcome of the investigation, or, at a minimum, taking steps to ensure that the complainant and alleged harasser do not have contact during the investigation.


Sample Checklist for Interviewing a Witness

1. Introductory Statement. To call and set up the meeting:
“I need to talk to you about a human resources matter.” At the meeting: 
“We have had a complaint about harassment and we are conducting an investigation. You are here because we have been told you may have some knowledge of the situation. Please relax. The purpose of our conversation is for me to gather facts and to find out what happened.” 
[With two people present] “ ___________ is here to take notes as you and I talk so that I can focus on our discussion without the distraction of taking notes at the same time.”

2. Discuss the Confidential Nature of the Investigation. “Please know that we cannot promise complete confidentiality during the course of this investigation. We will, however, keep this matter as confidential as possible in light of the need to conduct a thorough investigation. Please don’t discuss this matter with others, which will help us preserve confidentiality.”

3. Explain the Organization’s Policy on Non-Retaliation. “Our organization prohibits retaliation against any employee who participates as a witness in an internal investigation, so there should be no adverse consequences against you. I encourage you to be completely honest with me. If at any time you feel you are being retaliated against, please immediately come and see me, okay?”

4. Provide a brief summary of the complaint received.

5. Did this happen?

6. Tell me what you know about this incident:

a. Who?

b. What specifically happened (details of what occurred, exactly what was said, gestures, physical contact)?

c. When did the incident occur (date, time of day)?

d. Where did the incident occur (If at the worksite, did it occur in an office, lunchroom, hallway, conference room, etc.? If away from the worksite, did it occur in a bar, restaurant, hotel room, etc.) ?

e. What was the complainant’s response to the incident at the time it occurred (What did the complainant say to you; how did the complainant react)?

f. Were there any other witnesses to the incident (If so, ask for names and what information the witness has about the incident.)?

7. Do you know any other incidents involving the complainant and the alleged harasser (If so, ask for specific details.)?

8. Have you ever experienced any problem with the alleged harasser (If so, ask for specific details.)?

9. Do you know anybody else who has experienced any problem with the alleged harasser (If so, ask for names and details regarding the problem)?

10. What is your relationship to the alleged harasser? (stranger, friend, co-worker, vendor, third-party co-worker, former relationship, enemy)

11. What is your relationship to the complainant? (stranger, friend, co-worker, former relationship, enemy)

12. Have you told me everything?

13. Do you want to talk to me about any other incidents or situations involving harassment?

14. Explain the steps you will take next and your follow up plans.

15. Please call me if you think of anything else to tell me or if you have any questions.

16. Thank you for taking the time to talk with me.