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Investigating an Employee: getting started

You run a business. You get a complaint about one of your employees. What next?

You have to begin an investigation. As a Chicago and Illinois employee defense lawyer, I can tell you that investigating problematic employees can often be a challenge.

Some complains require only minimal investigation, while others are emergencies that could lead to litigation. You can contact me, Chicago employment defense lawyer Rhonda Stuart, and check out the below tips.

Tips for investigating an employee in Illinois

Here are some guidelines when a formal investigation is in order:

  1. Promptly investigate: Issues should be identified during the first meeting with the accuser – get all the relevant information you can, including dates and times of any incidents and names of witnesses. Ask for supporting documents. Ask the accuser, also known as the complainant, to put the complaint in writing; this helps eliminate frivolous claims. Further, you should let the accuser know there will be a follow-up meeting after witnesses are interviewed. But do not agree not to investigate just because the complainant asks for anonymity or confidentiality.
  2. Choose an investigator/fact finder: Decide who will conduct the remaining interviews and gather information. This could be someone from the human resources department, a supervisor, or an in-house or outside attorney. Someone from human resources is often the best choice because that person knows the organization and is less intimidating than an attorney. However, you may want to consult with an attorney before starting the investigation, because the information gathered may then be considered privileged. You may also want to have a witness present during the remaining interviews. Above all else, the investigator must keep an open mind and not be influenced by personal opinions about the parties involved. The investigator should also understand the substantive law involved and be familiar with any company policies that may relate to the situation.
  3. Interviewing the accused employee: Interview the accused next. Ask if he or she knows why the accuser might make such an allegation and whether they have had past difficulties. Let the accused know that no conclusion has been reached yet and that there will be a follow-up meeting.
  4. Taking interim action: Interim action may be needed; for example, you might separating the employees involved or suspend the accused with pay.
  5. Initial witness interviews: Plan the order of witness interviews and notify the interviewees. If the accused or accuser has spoken to others about the incidents, be sure to include those people as witnesses. Prepare questions beforehand and ask them in the same order, although the interviews may vary somewhat from witness to witness. Get witness statements in writing or take detailed notes. Encourage witnesses to return later if they have additional information. Do not detain reluctant witnesses with threats or force, but do remind them of their duty to cooperate. Some interviewees may ask to have a witness present. A union member may usually have a steward present during questioning, and an attorney may be present if criminal investigators have become involved. Otherwise, an interviewee is not entitled to have a witness, although allowing it would not necessarily harm the investigation.
  6. Confidentiality: Assure everyone that the information they’ve provided will be kept confidential to the extent possible and that there will be no retaliation. Remind witnesses that breach of confidentiality will result in disciplinary measures and can also lead to defamation or invasion of privacy claims.
  7. Final interviews: Interview the accuser and accused one more time. Assess their credibility based on such factors as demeanor, which side makes sense, and whether witnesses made conflicting statements.
  8. Complete the investigation:  Once the investigation is complete, the investigator should write up the findings. Read the findings, then decide on a course of action; have your decision reviewed by the director of human resources. Some employers prefer to have a team of individuals affected by the issues — human resources, security, a manager — read the findings and arrive at a decision together.
  9. Take corrective action: Put the decision in writing and give a copy to the accused and the accuser; take any necessary corrective action promptly. Get a signed statement from the accuser acknowledging that he or she knows the steps you have taken. Document the appropriate personnel files. You may also want to make an appeal process available.
  10. Follow-up: If the complaint was found to have merit, follow up with the accuser; find out how he or she is doing. Address any other problems that were revealed during the investigation.

Moving forward to investigate an employee

I’m a  Chicago and Illinois employee defense lawyer, and I have conducted numerous employee investigations. If you have questions about conducting an investigation, I might be able to help you out – I can help you develop the appropriate processes to best position your company in the future.

You can contact me, Chicago employment defense lawyer Rhonda Stuart, and check out the below tips.