+ How has VMLC’s approach to investigations changed since COVID-19?

Given the current environment and in response to the COVID-19 virus, VMLC is conducting all investigative interviews by videoconference. We have transitioned our team to work remotely, which allows us to communicate with clients and investigation participants by email, text, and cell phone; keep current investigations moving forward; begin new investigations; and, be flexible and work around the needs of the investigation participants. Click to view VM's COVID-19 Services page.

+ Are there any essential advisories that a witness should be given during an investigative interview?

Yes. First, every witness should be advised that employees who bring a complaint or participate in an investigative interview are protected from retaliation under the employer’s policies and the law, and that retaliatory behavior should be reported if it occurs. Second, witnesses should be told that although they are not under oath, they are expected to answer questions truthfully. Third, consideration should be given to whether the employee should receive a confidentiality admonition.

+ What confidentiality admonition should be given to the witnesses?

Private sector employers must consider the ruling by the National Labor Relations Board (NLRB) in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019). In Apogee, the NLRB determined investigative confidentiality admonitions and rules are lawful for the duration of the investigation. If an employer would like to maintain confidentiality after an investigation is completed, however, they must show legitimate justifications which outweigh the effect on employees’ exercise of their rights to engage in concerted activity.

Public sector employers must consider the ruling by the Public Employment Relations Board (PERB) in Los Angeles Community College District, PERB Decision No. 2404-E (2014). In its decision, PERB determined vague, boilerplate confidentiality rules unlawfully interfere with employee rights. However, an employer may cure any unlawful interference with protected rights by clarifying the scope and limits of a confidentiality directive. An employer should explicitly state the confidentiality directive does not limit an employee’s protected rights to communicate about wages, hours, terms and conditions of employment, and other protected activities.

+ How much does it cost to outsource an investigation?

The cost of an investigation depends, of course, on a number of factors. Van Dermyden Makus provides an estimated cost proposal early on in the process, based on information known at that time. Cost proposals take into account the scope of the investigation (number of complainants, allegations, witnesses, documents); the seriousness of the allegations (interim action considerations, law enforcement concerns, threat assessment experts, media coverage); report requirements (comprehensive report, executive summary, summary of findings to parties, recommendations); and, other costs unique to the investigation.

+ What are some of the common mistakes that workplace investigators make?

It is a mistake for an investigator to conclude that there was a violation of law rather than company policy. If the investigator’s report concludes that the accused engaged in disability harassment in violation of the law, for example, the report could be construed as an admission of liability if the matter proceeds to litigation. By contrast, if the investigator concludes that the accused engaged in disability harassment in violation of the company’s stricter policies prohibiting such conduct, the employer can take corrective action without fearing an admission that it violated the law.

Another mistake is the failure to properly handle reports of potential violence. Some witnesses complain – “I am afraid to talk to you” – simply because they are nervous about the investigative interview. But a seasoned investigator will explore further to find out whether the witness is concerned about personal safety or threats of violence. Even if a complaint is dismissed for lack of merit, an experienced investigator will communicate the concerns of potential violence so an appropriate assessment can be made. As for actual threats – “he told me he had a gun” – the investigator must take swift action to make sure that proper organizational representatives are notified so they can take appropriate steps to ensure a safe workplace.

+ What information should a workplace investigative report provide?

First, the client determines the scope (not the method or findings) of the investigation, which in turn impacts the scope of what the report should include. Depending on the scope of the investigation, the report can answer the following questions:

• Did the alleged conduct, more likely than not, occur?

• Did the alleged conduct, more likely than not, occur because of an improper motive?

• Was there a violation of the employer’s policies?

This requires the investigator to analyze all the available facts to reach a reasoned conclusion. By answering these questions, the decision-makers have a basis for making sound employment decisions.