1. The Do’s and Don’ts
of Conducting an
Internal
Investigation
Hilton Waikoloa Village Resort Big
Island, Hawaii.
Teri Morning, MS, MBA, SPHR/SPHR-CA
Teri Morning Enterprises
www.terimorning.com

2. Overview
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Employment Law Basics
General
An Initial Complaint
Preliminary Investigation
Witness Interviews
Physical and
Documentary Evidence
• Investigative Report

3. In Regards To
Employment Law Do:
• Realize that Title VII of the Civil Rights
Act of 1964, and other employment laws
may have some implications for almost
all investigations occurring in the
workplace.
– Including OSHA and safety laws.
• Understand state law, and even local
law, including those which may not be
employment laws but are applicable to
the investigation.
• Include how to make any type of
complaint and non retaliation language
in your employee policies and training.

4. In Regards To
Employment Law Do:
• Consider;
– A stand alone non retaliation policy.
– Ethics policy.
• Include vendors too.
– Investigative policy.
– Include in the progressive discipline
policy, situations that will warrant
suspension pending the outcome of
an investigation.
• Leave some “room” for
discretion.
– Revising the personnel file policy to
carve out investigative files as
employer files.

5. In Regards to
Common Law Do
Understand:
• Negligence;
– Hiring,
– Supervision,
– Retention,
– Investigation.

6. In Regards to
Common Law Do
Understand:
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Assault,
Battery,
False imprisonment,
Invasion of privacy,
Defamation,
Malicious prosecution,
Abuse of process.

7. In General Do:
• Approach an investigation with an open
mind.
• Know that investigations are fact driven.
• Know your role-fact finder NOT
employee advocate
• Think of yourself as a “reasonable”
person under the circumstances.
Consider what a reasonable person
would do.
• Set parameters with your boss.
• Know your organization’s personnel
policies and keep current with legal
developments.
• Have a system of checks, balances and
upper level review.

8. In General Do:
• Establish an investigative protocol that
you routinely follow (e.g., how a complaint
is documented, who is notified, who in
your department undertakes what tasks).
Deviations from protocol should be noted
and justified.
• Start a chronology.
• Realize not all documentation is good
documentation.
• Recognize when you need a separate
investigation.
• Be vigilant for retaliatory behavior.
• Know its difficult to do a good
investigation if you have no technical
knowledge or there is a power imbalance.
• Know to bow out if you are not the right
investigator.
• Get professional training in how to
conduct a professional investigation!

9. In General Don’t:
• Try Law & Order techniques!
• Assume you know what
happened.
• Assume you “know” people.
• Assume you are a good judge of
character.
• Make decisions based on your
“gut”.
• Overestimate or depend on your
knowledge of “body language”.
• Underestimate employees’
understanding of employment
laws.
• Fail to realize desperate people
do desperate things. Especially in
a bad economy.

10. In General Don’t:
• Forget that a prompt and thorough
investigation may be your credit
union's best defense against
charges of workplace misconduct—
even if “bad” things are uncovered.
• Wait for a complaint if you become
aware of a workplace situation that
regardless of loss, may violate
policy or law.
• Do nothing.

11. In General Don’t:
• Be timid; you may have to be
assertive, ever-conscious of the fact
that you are charged with protecting
the credit union.
• Delay or procrastinate in commencing
an investigation; in doing so you may
compromise your defenses.
• Use Law & Order techniques.
Employer Investigations are interviews
not interrogations.
• Be sneaky and try to trap people.
• Promise, intimidate, make deals, or
threaten people.

12. An Initial Complaint Do:
• Document the substance of (if there is) a
complaint and the means by which you
received it; note date, time, and other
circumstances.
• Consider having a form. If there is a
complainant, request the person write
the complaint out firsthand.
• Understand that failure to document an
initial complaint accurately can
compromise your investigation.
• Document and consider investigating a
workplace situation that may violate
policy or law, regardless of whether you
have received a complaint about it.

13. An Initial Complaint Do:
• Determine what policies and/or laws the
matter implicates.
– Failure to do this can lead to a flawed
investigation and flawed outcome.
• Make sure your personnel policies
contain a description of all your complaint
procedures and that the procedure allows
for complaints to be made to a number of
designated parties within the
organization.
– Broad enough to catch all complaints,
narrow enough none slip through.
• Avenues of complaint other than
direct supervisors.

14. An Initial Complaint Do:
• Make sure that those designated in
the complaint procedure know how to
address a complaint, take a
complaint, know your investigatory
processes and how to treat a
complaining employee.
• Identify those persons in the
organization who have a “need to
know” of the situation (and when
those persons should be made aware
of it).
• Understand the difference between
“need to know” and “WANT to know”.

15. An Initial Complaint Do:
• Strongly consider consulting with
legal counsel for sound investigative
advice and to establish attorneyclient and attorney work-product
privileges.
– Understand communications.
• Determine whether prompt remedial
action is necessary to prevent a
situation from getting out of hand
and/or to protect individuals.
• Nothing that could be considered
retaliatory towards a person making
a complaint.

16. An Initial Complaint
Don’t:
• Fail to document a complaint or
“constructive notice” of a workplace
situation which may warrant a full-scale
investigation.
• Fail to have a plan and a general
protocol which governs when and how
complaints will be handled by those
receiving them and when and how an
investigation will be conducted.
• Leave managers to take
complaints/investigate without training.
• Ignore complaints.

17. Preliminary
Investigation Do:
• Determine who is the best
investigator.
– No conflicts of interest.
• Best practice-2 investigators.
– Establish a division of labor.
• Best practice to have a coinvestigator.
– Always have a witness when
interviewing an accused.
• Determine the potential scope and
direction of the investigation.

18. Preliminary
Investigation Do:
• Determine the goals of the
investigation.
• Ascertain the disadvantages of
proceeding with an investigation.
• Anticipate contingencies.
• Establish a timeline for conducting
the investigation.
• Realize good investigations take
some, often lots, of time.
• Investigate as policy implications
rather than law unless instructed
otherwise by legal counsel.

19. Preliminary
Investigation Do:
• Create an investigative file. Keep
out of personnel files.
• Recognize investigation files are
generally not personnel files - unless
you make them so through their
treatment.
• Compile a list of potential witnesses
and preliminary questions.
• Determine the order in which to
interview prospective witnesses.

20. Preliminary
Investigation Do:
• Compile a list of potential
documentary and physical
evidence.
• Review personnel files of the
complainant and others identified
in the complaint.
• Determine whether any persons
identified have been the subject
of prior investigations; if so,
review investigative files.

21. Preliminary
Investigation Don’t:
• Proceed without a plan and an
assessment of the situation.
• Delay in commencing the investigation.
– Some workplace investigations
(harassment) require you to be
“prompt.”
• Attempt to sway the outcome of the
investigation.
• Attempt to come to a conclusion after
interviewing each person.
• Destroy anything that might be
evidence.

22. Witness Interviews Do:
• Determine who should attend the
interview.
– Matching the demographic profile.
• Determine where and when to hold
the interview(s).
– Determine the “setting” of the
interview (e.g., formal, informal,
from behind your desk, at a
conference table, in adjacent
chairs). Authoritative?

23. Witness Interviews Do:
• Consider asking the person making
a complaint/subject of the complaint
if they are comfortable with you as
investigator.
– But only if you HAVE other
investigators.
• Anticipate questions and concerns
of the witness; educate as to the
process to put anxious witnesses at
ease.
• Make sure you are prepared (note
pad, copies of policies, cup of
coffee).
– Give witness a note pad.

24. Witness Interviews Do:
• Establish and communicate the
ground rules for the interview;
retaliation statements, tape
recording allowed or not allowed),
opportunity for review and
correction of interview notes, etc.).
– Determine if an introductory
script is warranted.
– Determine if a review of any
policies is warranted.
– Use silence effectively!

25. Witness Interviews Do:
• Prepare a generic list of questions
– Stick to the 5 “W”’s and a “H”;
Who, What, When, Where, Why
and How.
– Prepare a list of questions tailored
to the specifics of the
investigation. Determine how to
contact prospective witnesses and
what to tell them initially.
– Consider maps (1 per witness).
– Site visits.
• Vary your questioning technique to
avoid redundancy, monotony, and
predictability.
• Remember to have the witness
identify other potential witnesses.

26. Witness Interviews Do:
• Take accurate, detailed notes.
• Formalize (e.g., type, correct)
interview notes promptly after the
interview; your notes should look
“professional.”
• Allow witness to review and
correct interview notes if
warranted.
• Have witness attest (by signature)
to the accuracy of the notes and
to the fact that he or she has had
the opportunity to review, correct,
and expand upon them.
• Use body language for a baseline.
– Become a critical observer.

27. Witness Interviews Don’t:
• Let the witness leave without their
knowing how to contact you.
– 2 cards; 1 for them, the other for
anyone who pressures them.
• Forget that your interview notes may
become evidence in an investigation or
lawsuit: they should be “professional”
in appearance and substance.
• Express any opinions or agreements.
• Record any opinions or any subjective
assessments of credibility.
• Make determinations on body
language.
• Fail to educate ALL about retaliation.

28. Witness Interviews Don’t:
• Assure the witness that his or her
statement will be kept in strict confidence;
ultimately, you may have no control over
the disclosure of the information
presented. Instead, communicate that
only those with a justifiable “need to
know” will have access.
• Intimidate or threaten witnesses; coerced
testimony can be more harmful than no
testimony.
• Conduct “group” interviews. Witnesses
should be interviewed one at a time so
they do not influence or otherwise taint
one another’s testimony.
– Generally don’t tell one witness what
the other witnesses said.

29. Evidence Do:
• Keep a list of potential evidence.
– 3 types of evidence.
• Keep a running list of the evidence
you receive and examine.
• Have a document receipt, tracking,
and return protocol (also known as a
“chain of custody” procedure).
• Make copies of all documents
received.
• Keep evidence in a secure area
accessible only to those with a “need
to see” it.
• Make your attorney aware of
unfavorable evidence.

30. Evidence Don’t:
• Take custody of original
documents or physical evidence
without acknowledging receipt in
writing.
• Change or alter documents.
• Forget about computers and other
digital evidence.
• Throw away documents or other
evidence.
– Spoliation.

31. Investigative Report Do:
• Use a format and language suitable to
the audience.
• Use proper names, places, specifics. No
he, she, them, in the parking lot. Name
who by name, and what parking lot.
• Determine who will have access to the
report (need to know) and make
arrangements to limit access to those
individuals.
• Keep in mind that the report may
eventually be read by agency
investigators and/or adversaries in
discovery. Accordingly, the report should
be professional in appearance and
content.

32. Investigative Report Do:
• Understand the concept of “good faith”.
• Attach relevant documents to the
report for easy access to the reader.
• Be factual, concise, orderly, specific
and clear.
• Research and investigate workplace
issues above and beyond those raised
in the complaint that the initial
investigation uncovered. Investigate
those issues separately and report on
them separately.
• Determine that disciplinary measures
that are recommendable are
appropriate to the offense and
consistent with measures taken in
similar circumstances.

33. Investigative Report
Don’t:
• Include “irrelevant” information in
the report. Keep in mind that the
report ultimately may be read by
agency investigators and/or
litigants.
• Include opinions. Reports should
be fact driven.
• Include “body language”. That’s
generally an opinion. Even if
something happened – you don’t
know why.

34. Mahalo!
Hilton Waikoloa Village Resort
Big Island, Hawaii.
Teri Morning, MS, MBA, SPHR
Teri Morning Enterprises
www.terimorning.com
teri@terimorning.com