(Note: This section is presented for Certified Investigators responsible for conducting investigations when alleged employee misconduct occurs in their organizations, e.g.
allegations of abuse or neglect. The intent of this module is to present the investigatory challenges needing to be considered in these circumstances so that any final conclusions reached, such as substantiating abuse, will be upheld if challenged.
ODP DOES NOT RECOMMEND PERSONNAL ACTIONS WITH ANOTHER AGENCY.
As always, if questions arise during an investigation your organization’s policies and procedures, Human Resources staff, or agency legal counsel should be consulted.)More and more scrutiny is being applied to the “failure” of human service and healthcare organizations to protect people from harm, particularly abuse and neglect involving employees in these organizations. Entities like CMS and the USDOJ do not necessary focus on individual service providers, but often focus on a state’s “system” of protecting people from harm, especially abuse and neglect. Many of the concerns raised about organizations or systems allowing “abusers” to work evolve from the failure to conduct quality investigations that ultimately fail to support decisions to substantiate abuse and impose discipline.
Personnel Issues and the Investigation Process
Employees generally can challenge disciplinary decisions through grievance or other legal channels. The original disciplinary action is often overturned or reduced by hearing officers, arbitrators, administrative law judges, or even judges and juries in civil trials, because of poorly conducted investigations leading to conclusions that must be seen as faulty by parties “judging”
these cases. In these situations the issue is no longer “did someone commit abuse against an individual,” but “how did you arrive at the conclusion abuse occurred?”
While it is not the responsibility of investigators to impose discipline, the certified investigation process leading to a decision to impose discipline is core to determining whether the discipline imposed is fair and appropriate. Because of this, certified investigators need to understand how labor laws and regulations impact the investigation process and ultimately, personnel decisions made as a result of an investigation.
Employers run the risk of legal challenges, including employee grievances and claims of wrongful discharge, as a result of a disciplinary termination (such as when an investigation confirms abuse or neglect). In these cases, not only is the investigation and the evidence the foundation of decision-making by an employer, it also becomes their defense if later
challenged. Because of this relationship, it is critical that all information related to the investigation be “court” or “hearing-ready.”
Version 1.0 (10/09) Page 46 The level of disciplinary action imposed (e.g. one day suspension without pay versus
termination of employment) must generally fit the severity of the infraction. When appearing before a hearing officer, arbitrator, administrative law judge, or even a jury, the burden of proof in most cases falls to the employer who is responsible for defending their actions and decisions. The organization must be able to defend their actions, e.g. how the conclusion to substantiate abuse was determined, regardless of the practices used by the organization, or the validity of their argument. In essence, it is not what we do, but how we do it that becomes the focus of these challenges.
Consistent policies, fairly applied, require consistent documentation that supports and
objectively records performance issues. Conducting competent, objective investigations, and preparing of well written Final Certified Investigation Reports, supports this as well.
When management needs to determine appropriate corrective action in relation to employee disciplinary action, several issues need to be taken into consideration including:
1. The infraction itself (e.g. confirmed abuse).
2. How the organization treated similar situations (past practices – were similar situations treated in similar ways).
3. Any related federal and state regulations.
Before imposing disciplinary action, the following steps must be taken when it appears a preponderance of evidence exists to substantiate the allegation:
1. Assure the credibility of the parties and witnesses involved has been carefully assessed;
if possible, identify and interview witnesses who can provide independent corroboration where a witness' credibility is questionable.
2. Assure the evidence collected is valid. Evaluate whether any relevant evidence was omitted or overlooked.
3. As necessary, keep the investigation open so additional documentation or supporting evidence can be obtained. If the investigation needs to remain open past the 30 day requirement outlined in the Incident Management Bulletin, a request for extension should be made through the HCSIS system. Obtaining additional supporting evidence now (versus later) generally adds more credibility to any decisions made. It is also easier (and less costly) to extend the investigation than to reinvestigate at a later time.
4. Conduct follow-up interviews to reconcile conflicting evidence or when aspects of the story seem implausible.
5. Consider whether the alleged target(s) has provided plausible excuses or alibis before determining final conclusions; conversely, do not search for alibis or character witnesses if no plausible alternative accounts have been offered.
6. Identify the basis of the disciplinary action that is to be taken during the administrative review of the investigation.
7. Meet with everyone who should be involved in making the recommendation.
Version 1.0 (10/09) Page 47 8. If appropriate, create and follow a termination checklist (see below for further
discussion on this topic).
9. Conclude the investigation within appropriate timeframes. Prompt resolution is better than no resolution, even when there are minor facts that cannot be confirmed. The reality is some issues may remain inconclusive.
10. Findings should be communicated on a “need-to-know” basis. The investigation is closed by informing all necessary parties of the conclusion and ensuring the appropriate documentation is placed in corresponding files (e.g. personnel files, the individual’s record, investigation file, etc.).
Employers frequently fail to identify or articulate the reasons for discipline or termination and instead cite reasons for discipline that cannot be proven or substantiated. Provable reasons justifying termination are often ignored. This is another reason why the Final Certified Investigation Report is an important tool used to summarize the findings of the investigation and connect disciplinary action directly to these findings.
Providing vague reasons to an employee regarding his or her discipline or termination will potentially hurt an employer if the disciplinary action is appealed or challenged. The following will assist in an employer's defense if and when these challenges occur:
1. When possible, the specific rule or policy that was violated must be identified.
2. If more than one reason exists to justify termination, inform the employee of each one.
Do not “pick and choose” which to cite.
3. It is preferable to prepare a written letter communicating the reasons for discipline or termination. If nothing is prepared in writing and the decisions are communicated orally to the employee, this information should be recorded immediately following the meeting to the employee’s personnel file.
Other questions organizations need to consider when conducting investigations that lead to potential employee disciplinary action include:
1. Has the infraction always been prohibited or subject to discipline?
a. If policies, procedures, or standards of performance have been changed, determine whether the employee received adequate notice of such changes.
b. Have policies, procedures or standards of performance been consistently applied by the employer?
c. Is discipline supported conclusively by the evidence?
d. Is termination the appropriate outcome for the infraction or would a less severe method of discipline (e.g. suspension without pay) be appropriate?
e. Has the employer tolerated similar instances of misconduct by other employees?
f. Is there an existing progressive discipline plan in place, and if so, has it been followed?
2. Has the substantiated misconduct always been prohibited or subject to discipline?
3. Is disciplinary action supported conclusively by the evidence?
Version 1.0 (10/09) Page 48 4. Has the decision been reviewed by anyone else, e.g. Human Resource Director of the
organization, legal counsel for the organization, etc.?
5. Is this a high-risk termination? High-risk means the following:
a. Is the employee a member of a statutorily protected class (based for example, on the employee's race, age, sex, national origin, religion and disability)?
b. Is the employee a whistleblower (reported to management or a government agency about alleged illegal acts committed by the employer)?
c. Has the employee filed complaints or charges with the EEOC, Department of Labor (DOL), or the Occupational Safety and Health Administration (OSHA), or assisted another employee in filing complaints or charges?
d. Is the employee considered a leader for employee rights?
e. Has the employee filed for workers' compensation benefits?
f. Is the employee nearly vested in his or her pension or retirement?
6. Does the employee have an employment contract? Issues to consider involving employment contracts include:
a. Being fired only for cause because of express or implied contracts. If this clause exists, determine whether the infraction supports termination for cause.
b. The need to impose progressive discipline prior to termination.
7. If it is a high risk termination, does the decision need to be reviewed by legal counsel?
a. Inform the attorney for your organization all of the reasons for your decision including any weakness in the investigation or evidence, or any contradictory findings.
8. Are safety or violence precautions necessary when meeting with the employee to impose discipline?
a. If so, when should these precautions be implemented?
b. Do concerns about safety warrant sharing information with other individuals on a need-to-know basis?
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APPENDIX I – GLOSSARY
Beyond a Reasonable Doubt: The burden of proof needing to be satisfied in criminal proceeding s in order to determine a defendant guilty. Generally defined to mean no
"reasonable doubt" can exist in the mind of a reasonable person that the defendant is guilty.
Doubt can still exist, but only to the extent that it does not affect a "reasonable person's" belief that the defendant is guilty.
Chain of Custody: The investigation protocols used to assure the integrity of evidence over time in an investigation. The chain of custody begins as soon as the environment where the incident occurred is secured. The investigator is responsible for showing exactly where the evidence has been from the moment it was collected, until the time it might be used during a hearing. If the chain of custody is broken, the “certainty” of the evidence is undermined and questions can be raised about its validity.
Circumstantial evidence: evidence that is not considered to be conclusive in and of itself (see Direct Evidence); evidence that does not answer the question of the investigation, in and of itself, conclusively.
Collusion: A secret agreement between two or more parties for a fraudulent, illegal, or deceitful purpose. The American Heritage Dictionary of the English Language, Fourth Edition.
Competency: For the purposes of an investigation, competency is defined as a witness’
capacity to provide testimony at all on the topic of an investigation. It is not a test of credibility or believability of a witness. Determining competency of person as a witness is related to two (2) factors: the person’s ability to create and, or maintain memory, and understanding what it means to take an oath and “tell the truth.”
Conclusive: Evidence that is either unquestionable because it is so clear and convincing or because the law precludes its contradiction. A death certificate is considered conclusive evidence that a person has died. West's Encyclopedia of American Law, edition 2, 2008.
Demonstrative Evidence: The way in which an investigator attempts to preserve or summarize physical or documentary evidence identified at the time of the investigation. Demonstrative evidence includes charts, photographs, diagrams, and medical assessments (x-rays, CAT scans, etc.).
Direct evidence: typically testimony provided by an eyewitness that is viewed to conclusively answer the question(s) raised by the need to do an investigation.
Documentary Evidence: Anything written down, on paper or electronically. This category includes written statements—the way in which the investigator attempts to preserve
testimonial evidence— created during an investigatory interview. The business records of an organization, including consumer and personnel records, policies and procedures, training
Version 1.0 (10/09) Page 50 records, time and attendance records, financial documents, meeting minutes, records of the governing board, etc. are all examples of documentary evidence as well.
Due Process: The concept that laws and legal proceedings must be fair and that government (through our laws and regulations) must respect the rights of all people and not unfairly deprive them of “life, liberty, or property.” The basis of Due Process is found in the Fifth and Fourteenth Amendments to the Constitution of the United States.
Excited Utterance: An exception to the hearsay rule that involves the communications made by a person (witness) responding to a surprising or shocking incident (such as an assault).
Exculpatory Evidence: Evidence and, or statements which tend to clear, justify, or excuse a defendant (target of an investigation) from alleged fault or guilt. (Barron’s Law Dictionary, Barron’s Educational Series, Inc. 1996.)
Expert Testimony: An admissible form of evidence in legal proceedings allowing an “expert” to speculate about the nature of evidence such as a doctor describing how an injury occurred even though they did not have direct knowledge of the actual incident.
Facts: Pieces of information (evidence) available to the investigator.
Hearsay: Evidence based on the communication or reports of others instead of the personal observations or knowledge of a witness. Hearsay is generally not admissible as testimony in legal proceedings.
Inconclusive: Not conclusive; not leading to a definite decision or result, e.g. inconclusive evidence.
Incident: An event (requiring reporting) with potential to adversely impact an individual’s health, safety, or rights.
Incident Management: the response to an event, intended to ensure the adequate, appropriate, and effective protection of the health, safety and rights of the individual Investigation: the process of identifying, collecting, and assessing facts (evidence) in a
systematic manner. The purpose of an investigation is to objectively describe and explain what did (or did not) occur at a given place and time.
Irrelevant Evidence: facts that do not have the potential to describe or explain an incident under investigation.
Objectivity: the ability to describe or perceive something based on facts without influence by personal emotions and experiences, bias, or opinion.
Version 1.0 (10/09) Page 51 Opinion Testimony: A witness’ speculation about what they might have seen if that had
actually been a witness to an incident. Generally considered inadmissible as evidence in legal proceedings.
Physical Evidence: Objects or things such as an injury, weapon, fluids, etc., as well as the absence of things that otherwise would be available based on the testimony of witnesses.
Spatial relationships are another aspect of physical evidence available for assessment in an investigation (location of people in a room, the placement of furniture, distance of witnesses to the incident itself occurring). However, since missing items and spatial relationships among items rarely can be preserved, the next type of evidence is used to create a record.
Preponderance of the Evidence: The standard of evidence generally applied to civil or administrative proceedings requiring that conclusions of fact be based on the weight of the evidence. Other definitions characterize the preponderance test as the fact finder being
convinced that the conclusion of fact chosen is “more likely than not,” or that 51% (or more) of the evidence is supports one conclusion of fact over another.
Promulgate: to make known or public the terms of (a proposed law); to put (a law) into action or force.
Relevant Evidence: Facts that potentially describe or explain an event or incident under investigation.
Rules of Evidence: Laws governing the admissibility of proof at a hearing. They include the codified rules of the jurisdiction (e.g. a State’s Administrative Procedures Act) as well as constitutionally mandated requirements.
Standard of Proof: The level of evidence necessary for a party to prevail in a given case.
Standards of evidence applied include “preponderance,” “clear and convincing,” and “beyond a reasonable doubt.”
Substantiate: To establish the existence or truth of a particular fact through the use of competent evidence; to verify. West's Encyclopedia of American Law, 2nd Edition.
Testimonial Evidence: information a witness shares with the investigator, according to his or her capacity to observe a specific environment over a period of time. The capacity to make observations derives from the senses: what the witness saw, heard, tasted, touched, and smelled.
Unsubstantiated: not yet confirmed or proved to be true: unsubstantiated rumors. Collins Essential English Dictionary 2nd Edition 2006 © HarperCollins Publishers 2004, 2006
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