Workplace investigators encounter a wide variety of people over the course of an investigation, some more challenging than others. Effective handling of each complainant, alleged wrongdoer and witness is crucial to the outcome of the investigation, and good interviewing and investigation skills will always be needed, no matter what challenges they throw your way. Watch as Bill Nolan, Managing Partner of Barnes & Thornburg LLP’s Ohio office and author of the popular blog series: The Witness Files, outlines strategies for handling five situations you may encounter in a workplace investigation.

1. Workplace Investigations:
Managing 5 Challenging Witnesses
William A. Nolan, Barnes & Thornburg LLP

2. Presenter bio
Bill Nolan is the Managing Partner of Barnes & Thornburg
LLP’s Ohio office, which he opened in 2009, and a member
of the firm’s Labor and Employment Law Department.
Bill works to bring attentiveness and clarity to bear on
employment, contract, and other disputes, and helps clients
build teams, policies and processes to minimize the
frequency and severity of such disputes.
He frequently counsels clients on workplace harassment
complaints and investigations, wage and hour compliance,
and lawful discipline and terminations. He also conducts
manager and workplace training to ensure legal compliance
on the front lines.

3. Game Plan
• Premise: We keep seeing the same people!
• Who are they? The Witness Files.
• Review investigation objectives generally
• Look at some specific examples
• Takeaways

4. Challenges: Alleged Wrongdoers
• Clueless yet compliant
• High risk harasser
• Master manipulator

5. Challenges: Complainants
• Poor performer
• Questionable
• Counseled for performance
• Parting shot

6. Challenges: Other Players
• Squeamish supervisor
• Reluctant innocent bystander
• Gossipy witness

7. Here they are on the web …
http://i-sight.com/?s=nolan

8. Investigation Objectives
• Gather facts
• Respond accordingly
– Consequences for past conduct
– Optimize future conduct
• Towards complainant
• Towards others: you are on notice
• All of which: minimize liability to all parties

9. The Reluctant Innocent Bystander
• “He Said, She Said”
• 3rd party (Ruby) may be your only disinterested witness
• Ruby may not want to talk, e.g.
• Supervisor/subordinate harassment
• Ruby may have same supervisor and/or
• Complainant may be a friend
• In any event, people sometimes don’t want to get
involved

10. The Reluctant Innocent Bystander
• Start with pleasant persistence
• Explain what the company has asked YOU to do
• Face to face
• Harder to say no
• May work better for an internal investigator

11. The Reluctant Innocent Bystander
• Using some coercion with Ruby
• Your policy should say employees have OBLIGATION
to cooperate
• Even if you don’t …
• Gets same retaliation assurances – in writing – as
complainant

12. Poll Question
• Would you go as far as using discipline to
make Ruby cooperate?

13. The Gossipy Employee
• Investigation confidentiality is tricky
• As investigators we want to control
information
• You can’t promise witnesses (including the
complainant) confidentiality
• NLRB: employers need to make a
particularized determination
• As a practical matter: Everybody tells one
person

14. The Gossipy Employee
• Discipline the one who tells MORE than one
person carefully
• Primary mission is to gather information
• Manage risks – NLRB as well as retaliation
• But probably need to do something
• Craft it carefully

15. The Gossipy Employee
• Reminds of investigation pointers generally
• Strong policy on confidentiality
• Build agreement to confidentiality into witness
statements where appropriate
• Investigate expeditiously

16. The Poor Performing Complainant
• Scenario
• Paula alleges a supervisor sending her
inappropriate e-mails
• Not her supervisor
• In fact Paula’s supervisor Sara is very close to
terminating her

17. Poll Question
• Would you slow down Paula’s termination
track?

18. The Poor Performing Complainant
• Easy part: Do your investigation, follow up accordingly
• But Paula’s performance issues …
• Now in the protected class of People Who
Complained
• Don’t let Sara manifest frustration
• Start IN PERSON
• Communications with Paula are key
• Issues together or separate?

19. The Questionable Complainant
• Complainant is a marginal employee
• Alleged wrongdoer is very solid
• Know that doesn’t mean there isn’t harassment,
but allegations are vague and you question them
• No reported witnesses

20. The Questionable Complainant
• Follow your process
• Don’t memorialize your initial judgment
• Even if inconclusive
• Heighten supervision
• Do some training
• Can you reconfigure work space at all?
• Don’t gift complainant a retaliation claim

21. The Master Manipulator
• Uncommon but highly challenging
• Harassers may be clueless or insensitive, but
majority are not manipulators
• And few manipulators are masters

22. The Master Manipulator
• Scenario
• Employees working closely together
• Somewhat isolated
• Victim is marginal employee
• Harasser is “smart” about it
• A he said/she said without that third party and
no easy fix

23. The Master Manipulator
• Management thoughts
• Only takes one more person to see it
• Underscores need for real background checks
• May call for greater tools
• May need to invest in other employee
presence

24. Takeaways
• The objectives almost never change
– Gather facts as well as possible
– Document that you are doing so
• Challenging players are just different obstacles
to manage around
• Don’t let them distract you from the core
objectives
• Snowflakes

25. REVIEW: Investigation Objectives
• Gather facts
• Respond accordingly
– Consequences for past conduct
– Optimize future conduct
• Towards complainant
• Towards others: you are on notice
• All of which: minimize liability to all parties

26. Thank-you for participating
If you have any questions, please feel free
to email them to:
William A. Nolan, Office Managing Partner
bill.nolan@btlaw.com
Joe Gerard, Vice President Marketing and Sales
j.gerard@i-sight.com