If you’re conducting workplace investigations, it’s inevitable that at some point you’ll be faced with the dreaded “he said-she said” file. I think of a “he said-she said” scenario to be one where two parties have widely divergent versions of events and there are no eyewitnesses or other direct evidence.
In my role as review counsel at Rubin Thomlinson LLP, I review the workplace investigation reports that are prepared by the firm’s investigators to ensure that they are legal defensible. Clients also ask that I do the same for reports that they have prepared internally.
At the outset of an investigation, investigators need to consider how they will collect the verbal evidence from their interviewees. One of the best ways to ensure the accuracy of the evidence collected is to use a recording device.
The nature of discrimination is such that it is often based on an individual’s “gut feeling” about an experience or interaction, rather than anything that is overtly said or done. The courts have recognized time and again that discrimination is often subtle and not overt.
It has become somewhat of a Rubin Thomlinson tradition to host a webinar at the beginning of each year outlining our top 10 workplace investigation cases from the previous year. On January 14, 2021, we hosted our most well-attended webinar yet: The top 10 cases of 2020. Here are the discussed themes and a very brief summary of the presentation.
In my role as review counsel, I train others on how to write effective workplace investigation reports. When I review reports, much of what I focus on is readability: how is the report going to sound to the reader? Is it easy to read? Is the reader going to get confused by the report’s organization? I think about this mythical reader a lot; probably too much in fact, and I bet my colleagues are tired of hearing me go on about it.
Witnesses to whom I have extended an invitation to meet with me often have questions about the process. They want to know whether they are obligated to participate, what the investigation is about, and what will be done with the information they provide.