Start Gathering Evidence When a Complaint Is Made

Allen Smith, J.D. By Allen Smith, J.D. September 9, 2021
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LAS VEGAS — When an employee comes to HR with a complaint, HR has to pivot into investigation mode. This initially may mean acting as a journalist might, seeking the who, what, where, when and why, said Glen Kraemer, an attorney with Hirschfeld Kraemer LLP in San Francisco and Santa Monica, Calif., at the SHRM Annual Conference & Expo 2021 preconference workshop "From Intake to Resolution: Best Practices in Internal Investigations" on Sept. 9.

The best first question an employer can ask is the one to elicit the longest narrative response. Frequently, that's simply, "What happened?" Listen carefully and then ask, "What happened next?"

After the employee has had time to explain what happened, start narrowing the questions.

Here are some possible questions to ask while gathering the evidence at the initial meeting, according to Kraemer:

  • When did this happen?
  • Where did it happen?
  • How did it make you feel?
  • Who was there? What did they see? What have they told you? What did you tell them?
  • Has this ever happened before? When? Where?
  • Who have you told this to? What did you say?
  • Are there any written documents relevant to the issue that you know about?
  • Have you kept any written records or diaries that are relevant to the issue? Any expense reports, personnel file memos or other notes?
  • Who has similar concerns?
  • What are those concerns?
  • Are there any other issues you want to discuss?
  • What other facts are there that may be important for HR to know?

Be sure to include wrap-up questions, Kraemer said, such as, "Have you told me everything you are concerned about?"

Before Concluding the Interview

There are a number of steps to take before concluding the interview, according to Kraemer:

  • Thank the person who raised the issue for doing so.
  • Tell the person that the organization does not permit any retaliation against an employee who raises a legitimate issue.
  • Inform the employee that if there is a need to undertake an investigation, he or she will be apprised of this fact and will be told who will be conducting the investigation.
  • Tell the employee that you will limit the disclosure of information to those people having a legitimate need to know.
  • Explain that the complainant is not prohibited from speaking with others about the concerns but he or she should understand the potential impact those communications may have on assessment of witness testimony. Note that management employees may be obligated to maintain confidentiality concerning certain data.
  • Tell the employee that the person conducting the investigation will be getting back to him or her from time to time during the investigation and that the employee's continued cooperation in the investigation will be necessary to reach a resolution.
  • Ask the employee for suggestions on how he or she thinks the matter could best be resolved. Does the employee have any suggestions or preferred resolutions?
  • Let the employee know the organization will make any final determination regarding the best way to resolve the issue. The employee's input is valuable and will be considered seriously.
  • Thank the employee again for raising the issue and express commitment to resolving the matter in a timely fashion.

Confirmation Notification

Employers should send employees an issue confirmation memo to make sure everything is clearly understood, according to Kraemer.

At a minimum, the confirmation should do the following:

  • Identify the issue.
  • Identify facts provided by the employee to support the issue.
  • Confirm these are all the problems the employee raised.
  • Give the name of the person investigating the issue and confirm his or her impartiality and fairness.
  • Identify the road map for any investigation.
  • Outline the organization's expectations for the employee raising the issue.
  • Identify special confidentiality considerations.

Employers often say a confirmation memo sounds like a good idea and then never put one together, Kraemer said, but this documentation can be useful for the employer's lawyer if litigation subsequently arises.

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