Investigating Stale Complaints
Prompt, thorough, and impartial investigations are key to addressing workplace strife, such as ongoing harassment and discrimination. In practice, however, many factors can prevent employers from promptly initiating investigations. These factors include: the time it takes to assess a complaint and determine the appropriate investigator; insufficient information; voluminous complaints; insufficient resources and competing priorities; and, complying with complex policies. More recently, COVID-19 contributed to these challenges as employers struggled with the uncertainty of the future and focused on addressing the pressing issues posed by the pandemic.
When a complaint sits too long without action, it becomes stale. Stale complaints pose numerous challenges, as delays commonly result in the following problems:
Incidental destruction of documentary evidence;
Difficulties contacting and interviewing witnesses no longer affiliated with the organization;
Failing memories resulting in less useful witness statements; and,
Less cooperative parties
If you find yourself investigating an aged complaint, it is helpful to be aware of these four common obstacles, the impact they can have on the investigation, and techniques for overcoming them. This blog post provides practical tips for the workplace investigator tasked with conducting an investigation that has grown stale with time.
Incidental destruction of documentary evidence. As time passes, documentary evidence can be incidentally destroyed. Emails, pictures, recordings, chat histories, text messages, and social media posts may be purposefully or unintentionally deleted. Or, aging evidence may be destroyed through automatic purging, lack of storage capacity, or replaced electronic devices.
At the outset of an investigation, notify parties and witnesses who may have relevant documentary evidence as quickly as possible so they can make efforts to retain or recover it. Requesting copies of documentary evidence early increases the chances of obtaining it.
If essential documentation is missing, it may be necessary to consult with specialists. Under some circumstances, destroyed documentary evidence can be recovered. Coordinating with an internal Information Technology Department, a technology consultant, or a forensics examiner may be worth exploring in certain investigations.
If documentation is not feasibly available, ask witnesses for descriptions of documents during interviews. Then, seek corroboration via additional witness statements. For instance, this can be accomplished by asking witnesses if they recall being on the receiving end of an important message or seeing a specific picture.
Difficulties contacting unaffiliated witnesses. As time goes on, it is more likely people with knowledge of the matters at issue are no long affiliated with the organization. Employees pursue other opportunities, managers and executives change jobs, and students graduate. Nonetheless, as a workplace investigator, you may need to interview these witnesses.
As an initial matter, it can be more difficult to contact these witnesses. But there are a variety of options available to obtain contact information. Some options include: requesting the last known contact information from the organization; requesting contact information from the parties or witnesses who may have remained in contact; internet searches; searching white pages; and, searching social media or professional pages. There are also numerous fee-based services that offer location tracing and public record searches.
It is prudent to document each attempt to contact potential witnesses. If a witness is initially unresponsive, initiate contact using other methods if you have them available, such as through email, standard mail, phone, and text message. But, be cautious not to excessively contact witnesses. Provide potential witnesses with a reasonable deadline to respond in order to participate in the investigation, and move forward after that date.
Once contact is established, offer to discuss the investigative process with potential witnesses. Answering questions and explaining the value of their perspective can help encourage participation. It can also help build rapport prior to an investigative interview.
Less useful witness statements. Naturally, witnesses are less likely to accurately remember details of events as time passes. One interviewing technique particularly helpful in these situations is the “funnel method.” The funnel method involves asking broad questions such as, “What do you remember about that day?” before asking more specific questions about an event. This technique reduces external influence on the witness’ initial thoughts but may help trigger memories once their recollection is exhausted.
During the investigative interview, be patient as witnesses attempt to recall details of older events. Allow for pauses and assure witnesses they can take their time. Inform witnesses they can contact you after the interview concludes if they think of additional details. This helps to alleviate pressure and provides witnesses with the opportunity to reflect on the situation. Let witnesses know any information they can provide is helpful, even if their memory is incomplete. Sometimes small pieces of information can be invaluable to an investigation.
Less cooperative parties. A lengthy delay may result in less cooperative parties for a variety of reasons, such as doubts about the process, or transitioning into “litigation mode.” Feelings of exhaustion, defeat, frustration, stress, anxiety, anger, or fear may contribute to reluctant, defensive, or emotional witnesses. For tips and techniques on conducting interviews with these types of witnesses, see Managing Difficult Witness Interviews – Practical Tips.
If you worry a witness may be uncooperative during the investigation, reach out to them prior to the investigative interview. Offer to discuss the investigative process and address their questions and concerns. If necessary, let the parties know the investigation will go forward with or without their participation. If this is the case, provide a reasonable deadline for participation.
Throughout the investigation, convey the situation is being taken seriously. When you talk to a reluctant participant, provide space for them to express their feelings and concerns. Do not assume you know how they are feeling and refrain from judging their emotions. Rather, listen respectfully and respond appropriately. These steps can help put participants at ease and make the process more pleasant.
Maureen Dahl is an Associate Attorney with Van Dermyden Maddux Law Corporation. Her practice focuses on discrimination-based complaints in both private and public-sector employment contexts and Title IX campus investigations and hearings.
The foregoing is for informational purposes only and is not legal advice, nor should it be construed as such.
