He Said, She Said: Who's Telling the Truth in a Workplace Investigation?
It's a common workplace problem: one employee lodges a complaint against another employee claiming some sort of misconduct, like sexual harassment. The employer must take prompt corrective action to avoid liability. Someone from the employer's human resources has to investigate to find out what really happened and whether there are grounds for discipline. The human resources person interviews each of the employees to get both sides of the story. There are no other witnesses to the incident and the accused employee vehemently denies that anything happened. So now what?
A human resources professional may believe that little more can be done when faced with a "he said, she said" scenario like the one outlined above. It's never a good idea to take disciplinary action against an accused employee without substantial evidence of guilt. But if the employee really did something wrong, by closing an investigation as inconclusive and taking no further action, an employer runs the risk of liability for a hostile work environment. Avoid getting caught in this quandary by learning a few basic investigation techniques. An employer who conducts an effective workplace investigation will be in a better position to determine who's telling the truth and who's lying.
Attributes of a Good Investigator
- Impartiality both in reality and in the perceptions of the complaining employee, the accused, and any other employees who may be involved in the investigation.
- An ability to be objective and withhold judgment until all facts are in.
- Discretion and an ability to maintain confidentiality to preserve the integrity of the investigation.
- Knowledge of applicable laws and company policies.
- Good listening skills.
- An ability to evaluate evidence.
- Someone who would make a good witness if called to testify about the investigation and findings.
The primary goal of the investigation is to determine the validity of the complaint so that the employer can limit its liability by stopping inappropriate workplace behavior. The investigator should begin by creating a list of the issues to be explored, the relevant documents and other information to be reviewed, and the persons to be interviewed. This list may be expanded later as new information is uncovered.
Next, gather the relevant documents and records. Consider what information could be relevant to the specific allegations of the complaint. If the complainant alleges something inappropriate occurred at a particular place and time, are there are any documents that would place the accused employee in that location at that hour? If there is controlled access to certain areas of the workplace, there may be security records showing when people entered and exited that area. (Such records also may be useful for identifying the presence of potential witnesses.)
Other relevant business records may include telephone or computer logs, time sheets, security tapes, and expense statements. The investigator also should look at the personnel files of both the complainant and the accused, any notes maintained by the employees' supervisors, relevant company policies and procedures, records of prior complaints, and any documentation about the alleged incident, such as written witness statements, if available.
Review these materials before talking to any employees, as knowing what the documents say in advance helps pinpoint when a witness is lying, and use them to prepare interview questions.
There are two witnesses who must always be interviewed: the complaining employee and the accused. Regardless of the manner in which the complainant previously lodged the complaint, it's important for the investigator to conduct a formal interview as part of the investigation. Ask the employee to describe what happened, but don't suggest any facts or conclusions. The investigator also should project impartiality and convey that the employer takes the complaint seriously.
It’s also critical to get the accused's version of the events. Start with general questions ("Did you see [complainant] at work on Friday?" "What did the two of you talk about that day?") and follow up with more specific questions. If the employee claims the other is lying, explore any possible motives for a false claim. Because the truth always lies somewhere in the middle, explore possible misinterpretations.
It isn't sufficient to talk to just the complainant and the accused in most cases, especially if their stories are widely divergent. Other potential witnesses are those identified through the document review, persons identified by either party as having knowledge, supervisors of the parties, and co-workers. This list may expand based on information learned during the early interviews.
Documenting the Investigation
It's advisable to have a second management person present for interviews to support the investigator and take detailed notes. The notes need not be verbatim but should capture the essence of what the witness said. Having a second person available to do this allows the investigator concentrate on asking the questions and formulating follow-up questions. Also, a second person helps to avoid another "he said, she said" scenario if witnesses later change their stories. This "silent witness" should have a reputation for trustworthiness and good attention to detail.
The following interview techniques should be used when talking to witnesses:
- Take notes.
- Ask open-ended questions, not those that require a yes or no answer.
- Remember the five questions to get at the facts: who, what, where, when, how.
- Differentiate between the witnesses' own direct observations and hearsay.
- If the witness is repeating hearsay, find out the source of the information. Did it come from the complainant, the accused, or somebody else, or is it based only on rumor and innuendo?
- Don't accept conclusory statements as answers, dig for the "why"s.
- Ask follow-up questions.
- Ask questions to confirm or refute other information or witnesses – but don't reveal sources.
- Ask whether there are any supporting documents or anyone else with relevant information.
- Exhaust all avenues of inquiry.
- Remain neutral.
- Observe physical and verbal reactions
Making a Credibility Determination
In the absence of eyewitnesses, resolution of a workplace complaint often depends on a determination by the investigator as to which party, the accuser or complainant, is more credible. By conducitng a thorough review of the evidence using good investigative techniques, the investigator should be in a better position to make this determination.
When determining who to believe, consider:
1. The quality of the evidence: Facts are better than conclusions; direct evidence is better than hearsay. Consider distance and time. Was the witness too far away to have a clear view? How long ago did the events occur? The witness' account should remain internally consistent. Any discrepancies suggest the witness may be less than truthful.
2. Whether there is corroborating evidence: In the absence of direct evidence, a preponderance of circumstantial evidence may make a case against one party or the other. Consider whether the witness' story is consistent with the documentation. If there are no witnesses to the incident itself, look for first-hand accounts of the parties' behavior immediately before or after the specified time. A contemporaneous observation of the complainant crying shortly after the incident allegedly occurred supports a finding that something bad happened. Is there evidence of past similar incidents? This may establish a pattern or practice. Finally, consider whether there should be corroborating evidence to support the witness' story. If a witness claims someone made a phone call, is there a record of the call? There should be. If not, it's reasonable to assume there was no call.
3. The interests of the witnesses: Does anyone have a motive to lie? Someone with no stake in the outcome may be more credible than someone with something to gain or lose. Statements against interest also may be more credible; it's safe to assume that people don't say things to make themselves look bad unless those things are true.
Sometimes, despite the best investigative techniques, an investigator's findings truly are inconclusive. That doesn't mean the employer is off the hook. At a minimum, the employer should reiterate its policies and look for opportunities to reeducate the workforce to prevent future violations.
*Disclaimer: This Hub is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
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