Gathering Documents in a Workplace Investigation
An interesting article came out this week on Jobsinformed titled "Seven Steps to Successful Workplace Investigations" by employment attorney Patricia C. Perez, SPHR, founder of Puente Consulting.
In her Step 3, "Gathering Documentation", Ms. Perez summarizes the relevance of the investigator viewing the personnel files of the complainant and the accused. She writes:
You should automatically pull personnel files for both the complainant and the accused. The complainant’s file will tell you if he or she has ever filed other grievances, and what, if any, action was taken. It will also show if the person has a history of complaining about work-related issues or if he or she has an outstanding record but recently received a bad performance evaluation. This could indicate there is something else at play in the situation. As for the accused, the file will show if there is any prior history. It will tell if this is his or her tenth allegation of sexual harassment or it will include accommodations that state how fair he or she is in the workplace.
This is very good advice. Along these same lines, but slightly different, I suggest in my article "Practice Pointers for Workplace Investigations" (co-written with Los Angeles employment attorney Nancy Bornn and posted on the CAOWI website) that the investigator should interview the complainant before viewing the personnel file so as to avoid any real or perceived bias towards the complainant at the time of the interview.
Other documents the investigator should obtain, if relevant, are internal policy manuals, employee handbooks, e-mail communications, computer histories, cell phone records, security records, computer log in sheets, sign in books, and any other documents relevant to the facts of your incident(s) under investigation.
Great advice on why reviewing personel files is critical. It just seems that as an investigator, one cannot have her cake and eat it too. That is, how can the investigator understand the context of the case and give the complainant or accused an opportunity to address the fact that this is her 7th complaint in 7 weeks or that this is the third time an employee has accused this person of inappropriate touching if the investigator does not read the personel files prior to the investigatory interviews. Reading the files afterwards will only extend the duration (and burden) of the process unnecessarily if the investigator must then go back and reinterview once she has learned about prior conduct that may challenge credibility. Why can't the investigator sufficiently prepare by reading the files and still maintain neutrality? Isn't that our role?
Debra's Reply to Comment by JKP:
I appreciate healthy debate. My response to your comment is too lengthy and merited a new post today (February 17, 2010) titled: "Personnel Files: Review Before or After Interview, or Not at All?" Thank you for your comment.