What Your Mission Needs to Know About Internal Investigations, Part 2: Conducting the Investigation
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 develop a policy for conducting them in your organization. Part Two will now turn to tips on how to conduct the investigation once one is triggered.
What Kind of Information Should We Be Considering in an Internal Investigation?
The answer to this question depends on the purpose of the investigation. Before jumping into the investigation, reflect on the reason why an investigation is being done. Ask yourself: What am I trying to discover? Generally, it is good to start by looking at the complaint that triggered the investigation, relevant policies governing the situation, and any documentation of the complaint provided by the reporting party. Interviews with the key players will provide important information as well.
What Is the Best Way to Conduct an Interview with the Reporting/Complaining Party?
Whenever possible, the reporting party should be interviewed first. This helps set the facts for the investigation and gives the investigator a basis for determining who else to interview, and what other information is important. If the reporting party has completed a written complaint, it is best practice to go over that line by line. As an aside, encouraging a written grievance or complaint is a good idea. It helps encourage people to document their requests and can be a clearer signal for when an investigation needs to be triggered. It also helps clarify if the testimony is evolving.
Who does the actual interview should be considered here. Particularly where some of these topics may be extremely private matters—like sexual harassment—it may be preferable to have the interviewer be of the same gender as the reporting party.
What About the Accused Offender?
Oftentimes this interview is going to be somewhat hostile, so it is important to let the individual do most of the talking. Ask open-ended questions and let the individual tell his or her side of the story.
What if People Refuse to Cooperate with the Investigation?
An employer has an obligation under certain circumstances to conduct the investigation, even if the reporting employee, for example, does not want it to. To this end, the organization should consider instituting a policy that failure to participate may be grounds for discipline, up to and including termination.
However, be wary of enforcing this policy on a reporting party, particularly if federal law governs the conduct. Employers can get in big trouble for retaliating against reporting parties. And, reporting parties may be in a different position than alleged offenders, so they should be given some leeway here.
If an employee attempts to resign rather than participate, consider whether the organization should accept the resignation or should insist on participation; sometimes the results of the investigation would have justified termination (and there may be lots of implications to this in your policies/procedures).
Will We Be Able to Keep the Investigation Confidential?
Confidentiality in employment investigations is tricky for many reasons. First, it is important not to promise confidentiality because it is a promise that you may not be able to keep. Second, blanket requirements for confidentiality have been held to violate the National Labor Relations Act; even having a policy that investigations should be confidential may be problematic. Even without NLRA concerns (which may not apply to most religious organizations), enforcing confidentiality requirements gets complicated, particularly when you are dealing with people who are not employees, or are no longer members.
All this being said, for religious organizations, religious doctrine may have something to say about how employees should behave during these investigations. Discouragement of gossip, concerns about making uninformed judgments, reputational concerns, and other aspects of godly behavior may rightly come into play. And of course, the organization will have some control over how it disseminates its internal notes and findings, something we’ll address in the next part of this series.
Because of the generality of the information on this site, it may not apply to a given place, time, or set of facts. It is not intended to be legal advice, and should not be acted upon without specific legal advice based on particular situations