by Tim Twigg and Rebecca Crane
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You suspect an employee is embezzling from you or falsifying his or her time card. A problem arises with an employee violating an established office policy. A harassment allegation or accusation is made against you or another employee.
It is not unusual for employers to experience these scenarios.
What do you do? What do you have to do? What are your obligations?
Unfortunately, the nature of employee/employer relationships is such that problems like these arise. Many times, these can be successfully dealt with through verbal or written communication. Other times, due to the nature of the problem (size and scope) or the implications and/or impact on the practice, a more comprehensive approach may be necessary.
The value of internal investigations
The value of this more comprehensive approach, often referred to generically as an internal investigation, is both preventive and protective. It is preventive in that you can prevent similar problems from occurring in the future. It is protective in that you will have documentation to demonstrate “best efforts” made on your behalf to rectify the problem, minimize liability, and correct unacceptable behavior.
Conducting an internal investigation can be one of the most important jobs an employer has when faced with an employee complaint, and getting it done right is critical.
When to conduct an internal investigation
There are three main instances in which employers should begin an investigation:
- The first is when the employer receives information that a policy has been violated.
- The second is when an anonymous source issues a complaint.
- The third is when the employer hears comments, statements, or complaints about off-site or after-hours conduct that may be inappropriate, create problems at work, affect the employee's performance, or violate a policy or law.
Who should conduct the internal investigation?
Dental practices are typically small employers who don't have many people of authority except for the doctor. For that reason, the person who leads the investigation should be the doctor or business owner. If the practice does employ associate doctors or office managers, then one of those individuals could be the designated person for internal investigations if deemed appropriate. If the investigation may be tested in court or a threat of violence exists or there is an appearance of bias, an outside investigator may be more beneficial to the entire investigation.
Types of complaints
Complaints can come in all different forms of communication and need not be directly stated to the designated person. Complaints don't have to be written to be valid, nor do they have to contain buzzwords such as discrimination or harassment. Also, complaints from former employees may have merit which should be resolved before the problem persists.
All complaints that may indicate a potential problem should be investigated. Unlike other tasks in which a little procrastination is no big deal, that isn't the case here. Once the employer has knowledge of potential issues, the investigation should begin immediately.
All investigations should be as confidential as possible, and all investigative interviews should be held behind closed doors. If the problem requires further examination of a particular area of the business relevant to the issue or complaint, then that should take place. Exercise care to avoid stirring up rumors or other problems with staff members.
After receiving information and deciding that an internal investigation is appropriate, determine how extensive it needs to be. Some complaints are minor and may only require a brief conversation directly with the employee. Other issues, such as harassment, are likely to require an in-depth investigation involving several individuals. Concerns about theft or embezzlement may necessitate assistance from the police.
You will want to interview everyone involved in the complaint or situation being investigated. To do this, develop a set of interview questions that you will ideally ask each person; however, there will probably be additional questions that you ask as follow-up. If the information provided is unclear, don't hesitate to question the individual again for clarification. Use open-ended questions as much as possible to gather as much data as is feasible.
There may be some interim actions employers have to take while conducting an investigation. If harassment is the issue, when possible, one or both employees may have to be temporarily transferred to another position in order to avoid further harassing behavior.
Other types of interim actions could include temporary leaves of absence, work shift changes, or suspensions with pay. These actions should be handled on a case-by-case basis.
During the investigation take copious notes using the following tips:
- If there are two investigators, one should take the lead in asking questions while the other takes notes.
- Notes should capture the gist of the conversation. They do not have to be word for word; however, take the time to get accurate quotes of certain statements.
- Allow the interviewee to read and change the notes, if necessary, to ensure accuracy. Get the individual's initials on each page of the notes, plus a signature at the end. If the situation gets challenged later in the courts, this will help ensure the notes are viewed as authentic.
- Do not provide copies to any of the individuals to keep the information confidential.
The objective with all investigations is to gather factual information from which the employer can draw conclusions and reach a resolution. This may not be easy if the investigation reveals a “he said, she said” scenario; however, the employer cannot shy away from making a determination about the situation, complaint, or issue. A decision made in good faith can prevent liability.
Regardless of what is concluded from the investigation, the involved parties should be informed of the resolution. If the investigation is inconclusive, inform the complaining employee that he or she should report any additional information in the future if the situation continues.
In some cases, you may discover that the employee filed a false accusation, which will require immediate corrective action. Depending on the severity of the false accusation, immediate dismissal may be appropriate, suspension without pay, or a formal written warning may suffice. (Call our office for our Employee Counseling Memo, Form 418.)
If the complaint has merit, take immediate corrective action with the guilty party. You do not, however, have to inform the complaining employee of what the corrective action was, only that it was handled.
Here are a few other tips:
- Reiterate with all parties involved throughout the entire investigative process that no one will be subjected to retaliation of any kind for making a good-faith allegation.
- Encourage employees to come to you with any further complaints whether they are related to the investigation or not.
- After the problem has been resolved, follow up within a few days to ensure the situation has been remedied. Continue to check with the employee from time to time on an ongoing basis. Document these follow-up interviews.
- Retain all documentation in the employee's confidential file, which has restricted access.
There are no excuses for failing to conduct an investigation or for not making a good-faith effort to do it correctly. Take the time to correct the problems immediately before anything gets out of hand. How you respond to situations, issues, or complaints within your practice can mean the difference between significant financial losses due to liability or not. As tedious and stressful as it may be, an internal investigation could save you and your practice in the long run. Don't take chances with one of your most precious assets.
Tim Twigg is the president of Bent Ericksen & Associates, and Rebecca Crane is a human resource compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company's quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit the Web site at www.bentericksen.com.