This three-part series explores what religious organizations, and in particular, mission organizations, need to know about conducting internal employment investigations. Part One of the series addressed why these investigations are important and how to go about developing a policy for conducting them in your organization. Part Two explored how to conduct the investigation once one is triggered. Part Three discusses how to wrap up the investigation and what action to take in response.
How Should Conclusions in an Investigation Be Reached? What Is the Standard for Finding a Violation Occurred?
Most internal investigations use a standard called “preponderance of the evidence,” which means that the investigator is determining whether it is more likely than not that the misconduct happened as alleged. This is more relaxed than “beyond a reasonable doubt” or other criminal standards. Why is this? The standard needed to convict someone should be very high. But the organization is responsible for protecting those who are or could be victims of the misconduct, and for protecting the organization itself, so the standard should be lower.
Should We Prepare a Final Written Report?
Generally that is a good idea, although in some situations a written report might not be necessary, for example, if the matter is very minor. However, if there is a chance that the issue could lead to liability for the mission, having a written report reinforces that the mission did its due diligence in the investigation. It provides documentation for the ultimate decision and outcome of the investigation.
What Information Should Be Given to Those Who Participated in the Investigation?
This depends on a variety of factors, including the part the person played in the investigation, what issues were involved, and what the outcomes were. It is rarely advisable to give out a full written report to participants in the investigation. These are, of course, internal HR matters. This is particularly true if reports or documentation were prepared at the direction of counsel. Providing information widely may waive any privilege that would have otherwise protected the information and may create more issues than necessary. That being said, it is not unusual to provide findings in some abbreviated form to both the complaining party and the subject of the investigation. Providing such a summary is more common in religious organizations, who have a commitment relationally, and less common in business organizations.
In missions, a related question often arises of what to tell the sending church or supporters, particularly if the allegations are substantiated. This is always a tricky situation and each case should be dealt with individually and with the advice of legal counsel. Publicizing misconduct too widely can lead to legal liability in the form of defamation and other similar claims from a disgruntled former member. And because the standard of proof is lower (“more likely than not”), there is a fairness problem with spreading the news widely.
What Kind of Remedial Action Is Standard After an Investigation?
This depends entirely on the individual mission, the allegations involved, and what the investigation determined. Consider how similar situations have been dealt with in the past, whether the employee had notice that his or her conduct would result in discipline (such as through a written policy or clear scriptural mandate), and the severity of the allegations.
The organization may consider offering some additional services to the complaining party, like counseling or paid time off, no matter what the outcome. Particularly where the complaining individual seems significantly impacted, this can help demonstrate the mission’s good will and commitment to member care. This can be done in a way that does not jeopardize the organization’s liability, but instead, focuses on genuine care for the member.
Finally, a word about reconciliation. So often, particularly after investigations where there was not enough evidence to conclude that the allegations were substantiated, there is a desire to encourage reconciliation between the parties. Religious organizations have some leeway here due to theological and doctrinal issues, but be wary of placing requirements on the reporting party. Sometimes even a request that the reporting party attend some sort of session with the accused can later look like retaliation in a lawsuit. Make sure these things are entirely voluntary and not job-dependent.
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- Guest Post: Why Churches Need an Executive Pastor, Part 3
- The Future of the FLSA Overtime Rule
- When the Pre-Employment Interview Process Enters “Forbidden Territory,” Part 6