Good News: We Answer Your Questions About Misconduct Investigations

By Ann Boehm, March 11, 2024

If you have ever taken an investigations course taught by me, you have likely heard me say that investigations training is my favorite class. I know I shouldn’t have favorite classes, but I have a good reason for this favoritism. In my humble opinion, a good investigation is the foundation for effective discipline in the Federal government.

Many of our customers understand the value of a good investigation, and we get a lot of interesting questions on the topic. This month, I want to answer some commonly asked questions about misconduct investigations.

Who should conduct misconduct investigations? Employee Relations Specialists? IG investigators? Supervisors? A special cadre?

This answer is surprisingly simple. Anyone properly trained in Federal misconduct investigations should conduct misconduct investigations. It really does not matter where the individual works, but the proper training matters. It is up to agency policy and practice to determine who handles investigations.

Should investigators provide recommendations to disciplinary officials?

This is also an agency policy call, but I think there is great value in having investigators serve solely as evidence gatherers – not fact finders. The best investigators are impartial and unbiased. As I typically advise, investigators should allow themselves to be surprised throughout the investigation. Recommendations do not take away the impartiality, but it does move the investigator into more of a fact-finding role.

Is there a recommended order for interviewing employees involved in an alleged misconduct case?

The preferred order for interviewing witnesses is accuser, witnesses, accused. It’s best to have as much information as possible before interviewing the accused.

In harassment investigations, can we keep the name of the alleged victim confidential?

Fortunately, the EEOC itself has guidance on this question:

An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis.

A conflict between an employee’s desire for confidentiality and the employer’s duty to investigate may arise if an employee informs a supervisor about alleged harassment but asks him or her to keep the matter confidential and take no action. Inaction by the supervisor in such circumstances could lead to employer liability. While it may seem reasonable to let the employee determine whether to pursue a complaint, the employer must discharge its duty to prevent and correct harassment. One mechanism to help avoid such conflicts would be for the employer to set up an informational phone line which employees can use to discuss questions or concerns about harassment on an anonymous basis.

As an investigator, how do you determine if the evidence will meet the “preponderance of the evidence” burden of proof?

Preponderance of the evidence is “more likely than not”— in other words, 51% of the evidence supports a finding of misconduct. As evidence gatherers, investigators should keep the burden of proof in mind and strive to investigate thoroughly. To do so, you need to understand the substance of the misconduct – what rule(s) the employee allegedly broke. You also need to work hard to find corroborating, and sometimes, conflicting evidence. The great part about being an impartial evidence gatherer is that ultimately, you do not have to decide if the burden of proof is met. But it would be best if you did your darndest to interview witnesses with knowledge of the matter and gather any documentation or other evidence you can find to help the eventual fact finders determine whether the burden of proof was met.

I know agencies have an obligation (from EEOC and Supreme Court guidance) to promptly investigate harassment allegations based upon protected status under the anti-discrimination laws. Does that apply even if the alleged harassment is not connected to the employee’s protected status?

A prompt investigation is the best investigation, period. Why is that? Memories fade quickly. In any misconduct situation, agencies want the most accurate version of what actually happened. The sooner investigators interview witnesses and gather other evidence, the better. Plus, most agency anti-harassment policies have very tight timelines related to investigations, so be sure you know your policy in advance of the investigation.

These questions may just be the tip of the iceberg. Let me know if you have more! We here at FELTG are here to help. And that’s Good News! Boehm@FELTG.com

[Editor’s note: Join FELTG April 30 – May 2 for Conducting Effective Harassment Investigations.]