LP Magazine

MAR-APR 2018

LP magazine publishes articles for loss prevention, asset protection, and retail professionals covering shrinkage, investigations, shoplifting, internal theft, fraud, technology, best practices, and career development.

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continued from page 12 It's critical to establish the untainted story from the victim without any input from the investigator or his questions. 14 MARCH–APRIL 2018 | LOSSPREVENTIONMEDIA.COM preserve it in even more detail. If the incident is criminal in nature, such as a rape, the proper law enforcement authorities should be notified, and any evidence of the incident should be preserved and turned over to them. Depending on the parties involved in the incident, it is likely that human resources, legal, loss prevention, or an outside investigator will be assembled to handle the investigation. There may be issues relating to attorney-client privilege and the protection of documents that should be discussed at the onset of the investigation. Attorney-client privilege can be a complex process that requires the in-house or retained legal team to make a determination if this is an important consideration. Regardless of their decision, the investigation needs to be handled in a confidential and expedient manner to reach a resolution of the case. In general, the second step is the preparation of a list of people who will need to be interviewed and potentially the ordering of those interviews. There may be some cases where the complainant will provide such compelling evidence that the need to interview others may become unnecessary. However, as a matter of providing due process for the harasser in an investigation, they still should be offered an opportunity to tell their side of the story before any decision on their continued employment is made. Lacking that compelling evidence, it is almost always going to be necessary to conduct a series of interviews with other employees who may have witnessed the events or heard the victim's outcry. Next, based on the initial complaint, investigators should consider what evidence might be available to substantiate or disprove the complaint. It is often useful to identify and obtain these items of evidence before proceeding with any interviews. Evidence should be carefully cataloged and preserved separate from the working case file. The investigator should also establish background information on each of the persons to be interviewed, including their personality, performance, or other background information that might provide a context for their information. This background should also be conducted on the alleged harasser to establish the relationship between that individual and the complainant, plus any relevant documentation. The collection of this general information and any available evidence to support the initial complaint will provide a context for the upcoming interview with the victim, harasser, and other witnesses. The next thing to do is to select the order of the interviews and their location. Sometimes the preferred order of the interviews will have to be altered for any number of different reasons, but the interviews should be scheduled so that there is an appropriate time set aside by each of the participants. While there have been some labor rulings regarding asking people to keep the interview confidential, these types of cases are extremely sensitive and could have a devastating effect on the parties involved. So if there is any question regarding the legality of asking for confidentiality surrounding the interview, it should be discussed with your legal department. The first interview to be conducted has to be an in-depth conversation with the complainant. This is a critical conversation that will help establish the timeline of events, the context surrounding the events, and perhaps even the truthfulness of the allegations. In many of the sexual harassment interviews we conduct, we record our conversation with the complainant to clearly establish what he or she said about the incident and to capture related emotions. This interview is a time for the victim to talk without interruption from the investigator. It's critical to establish the untainted story from the victim without any input from the investigator or his questions. To obtain the untainted story in its purest form, we begin with a set of instructions that set the stage for our expectation of what the witness or victim will do. These expectations help them construct the story and include many more details than they would otherwise include in this first telling. The investigator then expands the details using open-ended questions, such as "tell me more about that" or "you said he yelled at you; explain that to me." It's only at the end of the interview that closed-ended questions should be used to lock down specific details that were not clear during the previous attempts at expansion. A closed-end question is asked about a specific detail: "Did he have his jacket on at that time?" These questions provide only a limited amount of information compared to a narrative response by the individual to an open-ended question. Once the victim's version of the events has been clearly established, it will be easier to determine exactly who needs to be interviewed and in what order they should be done. The investigator can also determine from the victim's statements what other corroborating evidence might be available to substantiate his or her story. It may be useful to construct a timeline of the event or events to help illustrate the timing of the allegations. As additional interviews are conducted, these can be added to the timeline to further illustrate the overall context of the event, for example, if there was an outcry witness who was told immediately after an incident this could be critically important to the overall assessment of the parties' truthfulness. In our next column we will continue with the development of a sexual harassment or workplace investigation.

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