LP Magazine

MAY-JUN 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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Life Is Like a Circle: Part Two I n part one of this article, we addressed some of the preliminary historical basis for investigating sexual harassment claims and internal investigations. We also talked about organizing the investigation and creating a general strategy for those who need to be interviewed. In part two, we will discuss some of the mechanics of organizing the investigation. While investigations often differ in the number of potential witnesses and the order in which they need to be interviewed, it is essential to open the interviews with the person making the complaint. This first interview with the complainant will provide the basis for the objectionable actions and may assist the investigator with determining the order of the other interviews and locating the supporting documentation or evidence. It may be that the first interview is not with the actual victim but with someone whom the victim approached shortly after the event and who felt compelled to report the alleged actions to management. Since the complainant in this scenario is not the victim but merely the reporter, the investigator must identify the victim and persuade that person to cooperate in the investigation. If the victim does not want to cooperate in the investigation, the organization must determine whether to proceed to investigate independent of the victim. In some situations, the company may determine an independent basis to substantiate events in the allegation's investigation, and the investigation should be continued. In either case, if the complaint is deemed worthy of continued investigation, an investigator should attempt to substantiate the facts independently and be appropriately skeptical of any information that appears biased or made on the basis of assumptions. Information that is biased or based on assumptions may ultimately be determined to be truthful and relevant, but it is only useful when it can be substantiated through other means. Confidentiality In any workplace investigation, there is a need for confidentiality. Unfortunately, the National Labor Relations Board (NLRB) ruled in Banner Health that the company could not require confidentiality of the investigation from its employees as a blanket rule. The NLRB decision said that confidentially could be requested from those involved in situations where there was a danger of evidence being altered or destroyed or in situations where there was potential for injury to those involved. In light of this recent ruling, the investigator should seek a decision from the company's general counsel or outside labor lawyers before asking those interviewed to keep the investigation confidential. If there is a decision to require confidentiality of those involved in the investigation, a clear set of reasons should be outlined to support the company's decision to do so. The victim and potential witnesses will undoubtedly be curious about the investigation and what others may have said during their interviews. It is the investigator's job to obtain information, not to share it with others who don't have a need to know. Sharing information may taint future interviews since witnesses may make assumptions or allow bias to creep into their memories. In short, the statements of other witnesses should not be shared, nor should there be an in-depth discussion of evidence for or against the alleged harasser. Timeliness The investigation should be carried out promptly and completed as soon as possible. It is generally advisable to apprise the victim and, if appropriate, the complainant that the investigation is ongoing and work is still being conducted. There is no need to discuss the direction or information uncovered at this point, but it reinforces the fact that the investigation is proceeding and taken by David E. Zulawski, CFI, CFE and Shane G. Sturman, CFI, CPP Zulawski and Sturman are executives in the investigative and training firm of Wicklander-Zulawski & Associates (w-z.com). Zulawski is a senior partner, and Sturman is president. Sturman is also a member of ASIS International's Retail Loss Prevention Council. They can be reached at 800-222-7789 or via email at dzulawski@w-z.com and ssturman@w-z.com. © 2018 Wicklander-Zulawski & Associates, Inc. continued on page 14 INTERVIEWING In any workplace investigation, there is a need for confidentiality. Unfortunately, the National Labor Relations Board (NLRB) ruled in Banner Health that the company could not require confidentiality of the investigation from its employees as a blanket rule. 12 MAY–JUNE 2018 | LOSSPREVENTIONMEDIA.COM

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