USA – PENNSYLVANIA Trends and Developments Contributed by: Robert Ufberg, Matthew Boyd and John Ellis, Ufberg & Associates, LLP
• What are the potential violations? • What legal issues may be implicated? • Is there a threat of harm/continuing harm to the complainant or others while the investigation is conducted? • Is an investigation the next appropriate step? • Is the employee being investigated a member of a unionised workforce? If so, make sure that you provide them their Weingarten rights (essentially, the right to have a union representative present when called into an investigatory meeting that may result in discipline) and that your methods meet all relevant procedural requirements, such as notifica - tion requirements and contractual time limitations. Selecting the investigator The cardinal rule is to execute a workplace investi - gation promptly, as well as thoroughly. There can sometimes be tension between those two elements. Delaying an investigation is never preferred, but bet - ter that an employer take heat for some delay than push ahead without a solid, respected investigator, capable of delivering a creditable investigative prod - uct, in place. Selecting an appropriate investigator is critical for a workplace investigation, and the first step is resolving whether your investigator will be internal – an employ - ee or known agent of your company – or external. If internal, the investigator should not have a direct or indirect reporting relationship to either the complain - ant or the individual being investigated. In some cases – for example, where the person being investigated is a high-ranking executive in the organisation – it may not be possible to identify an impartial investigator from within. In such cases, retaining an outside inves - tigator is not only advisable, but necessary. Outside investigators may also be the inherently better choice in cases involving highly sensitive issues, public or notorious figures, potential criminal conduct or com - plex legal matters. The organisation must also decide from the start whether it wishes for the results of the investigation to be protected by attorney–client privilege. If so, the investigation must be conducted under the auspices of legal counsel. While attorney–client privilege is often desirable, it may not be an appropriate buffer
in some cases. For example, an organisation may wish to have the freedom to disclose an investigator’s report without risking a waiver of the privilege (such as when the organisation is preparing a response to a governmental investigation or legal proceeding). The person or persons chosen to investigate must be committed to conducting a prompt, thorough investi - gation; must be impartial and objective (ie, no ‘stake’ in the outcome of the investigation); must have well- honed interviewing skills and experience; and must properly document the investigation – excellent wit - ness interviews are of little value if their contents are not properly memorialised or recorded. In addition, you would be wise to select an investigator who you know to be well-organised and conscious of the need for, and the mechanics of, assembling a thoughtfully developed plan, and revising quickly, if necessary, similar to a lawyer cross-examining a key witness at trial. The investigator should be comfortable mak - ing recommendations on specific remedial action, if determined necessary to appropriately address any misconduct found. The investigative plan After the investigator is selected, the first order of business is to review the complaint and identify the issues to be investigated. The investigator should identify, secure and review all relevant documents (relevant workplace policies, memos, personnel files, timecards, emails and other communications, surveil - lance footage and other documentary evidence). This will be the initial list, with the potential for expansion as additional issues and documents are identified in the course of the investigation. The investigator should do the same with people, preparing an initial list of those required to be interviewed, with additional witnesses identified as applicable as the investigation proceeds. The order of witness interviews is very important. As a general rule, it is usually best to start with the complainant, to ensure that the investigator has a full understanding of the allegations made. The complain - ant may identify other individuals with relevant infor- mation. Timing can be tricky – sometimes it can be a critical, or even a controlling consideration. Depending on factors as significant as witness availability or as mundane as the distance or direction of a witness in
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