3. Action Planning

Before jumping into Action Planning, ensure that the individuals tasked with case handling do not have a conflict of interest or the appearance of a conflict of interest.

The term “conflict of interest” applies to situations where there are actual, potential, or perceived competing interests that raise questions about an individual’s loyalties or decision-making. In the context of Keilim, a conflict of interest exists when someone has a relationship or interest that could interfere with the individual’s objectivity, such as being friends or rivals with one of the involved parties, being a funder or board member of the organization, or having competing interests such as a reporting relationship. Shared or differing identity, such as race, gender, gender expression, or age should never, by itself, be considered a conflict of interest.

Anyone involved in handling employee reports can identify a potential conflict of interest. This includes complainants, respondents, witnesses, those serving in a supervisory capacity, or those assigned to handle any part of the report handling process. Your organization should instruct individuals involved in the handling of reports to consider and to self-disclose the possibility of a real or perceived conflict (see the Conflict of Interest Checklist in the Supporting Resources section). The mere appearance of a conflict can impact the integrity of case handling as much as an actual conflict.

When a conflict or its appearance is identified, the organization should note the conflict and the steps that were taken to evaluate the conflict as well as any actions to remedy it, such as excluding involvement or participation of specific individuals. It can be helpful for your organization to pre-identify someone with no reporting, fact finding, or adjudicatory duties to examine conflicts of interest. 

Once you have determined that those assigned to handle a case are not conflicted, you can begin your Action Planning.

The decision to pursue fact finding should be based solely on whether the report, if found to be true, would constitute a violation of your organization’s Policy. If the answer is yes, then fact-finding must be initiated. This initiation of a fact-finding process is not an indication of any predetermined outcome; rather, it is a procedural decision to look into a situation.

Your analysis will take this form:

Question: Would the substance of the report, if found to be true, constitute a violation of our Policy?

Possible Answers:

a) Unsure. In this case, the organization will commence a preliminary inquiry (see more below).

b) No. These are often supervisory issues that can be addressed and resolved without further fact finding.

c) Yes. The report alleges multiple incidents, ongoing behavior, or serious violations of Policy that, if accurate, would likely lead to discipline, termination or removal, and/or unlawful behavior. In these cases the organization should commence a formal investigation immediately.

If the organization is unsure whether the behavior constitutes a violation of the Policy, or the behavior or incident is singular and easily verifiable, such as an incident that occurred publicly, the fact finding may involve a simple verification of events, called a preliminary inquiry. This preliminary inquiry may include a simple inspection of material referenced in the report, examination of physical space, speaking to the individual who was the recipient of the behavior (if the report was made by a third-party), and speaking with the individual accused of wrongdoing.

Example 1
An individual reports being disturbed after witnessing a senior executive kiss a junior employee on the cheek, initiate a long embrace, and get into a car beside her. Without additional information, the organization may be unsure whether these facts, if true, would violate the Policy. When they speak to the junior employee, they learn that the senior executive is her uncle, and he was taking her out for a birthday lunch. In this case, a brief preliminary inquiry helped the organization determine that no formal investigation was necessary since the facts reported did not violate their Policy. However, without this preliminary inquiry, the organization might have jumped straight to investigation, unnecessarily escalating a report that could have been quickly resolved.

Example 2
An employee reports an offensive poster in several colleagues’ offices, that, if present, would violate the Policy. A preliminary inquiry involves walking past those offices to see if the poster is present and as described. It also involves speaking to the employees who have hung the poster. If the employees report that their supervisor distributed the poster as a souvenir from vacation and then insisted that they all hang them up despite their protestations, this would add important context to the situation. This context would not change the organization’s determination as to whether the posters violated Policy, but it would impact the next steps the organization would take since, in that instance, the behavior was not that of an individual employee but rather made a term of employment by a supervisor. While an employee exercising bad judgment by hanging an inappropriate image would likely get a warning, a supervisor ordering others to hang an inappropriate image would certainly be subject to discipline, necessitating a more extensive investigation.

If it is determined that an investigation is necessary, consider which interim actions you’ll need to implement. Interim actions are steps your organization takes during the intake and case handling process to avoid misconduct, preserve evidence, and manage information. For example, this might include placing someone on paid administrative leave, removing someone’s access to IT systems, or temporarily reassigning someone to remote work while the organization sorts things out.

Interim actions are one way for an organization to demonstrate a prompt, appropriate, and effective response to a report. They are not always necessary but are critical if concerns about ongoing harm or interference with the investigation exist. Interim actions usually fall into these categories:

1. Separating parties to stop misconduct and reduce the chance of retaliatory actions.
2. Securing and protecting all available evidence, including documentation and data on both employer-owned devices and those voluntarily provided by employees on their personal devices.
3. Securing and eliminating risk of witness tampering or retaliation.
4. Enhancing likelihood of cooperation with investigation.

Interim actions should be taken with great care so they do not appear retaliatory. For instance, if an individual complains that they are experiencing harassment from congregants during activities that are part of the employee’s core responsibilities, removing those responsibilities from the employee’s job description could negatively affect their professional opportunities and career development. Rather, the interim action might involve adding additional staff presence during those activities.

Interim actions typically remain in place throughout the case handling process. When needed, interim actions should be monitored and sometimes enhanced based on changing circumstances. For a list of interim actions to consider, see the Interim Action Checklist in the Supporting Resources section.

Organizations need to balance competing interests: the preservation of the integrity of the fact-finding process, fairness to all involved, and the privacy of individuals who have brought reports or are accused of misconduct.  The organization has a duty to be as transparent as possible regarding limits on information sharing and, whenever possible, to avoid the disclosure of personal information not generally known, such as gender or sexual identity or survivor status, that may be revealed through the course of an investigation.

For every report that requires interim actions and/or investigation, a need-to-know analysis is necessary. There are varied levels of information sharing all predicated on what people need to know to ensure the organization executes its action plan correctly. A need-to-know analysis clarifies what can be communicated, for what purposes, and to whom. There are four levels of need to know:

1. No information at all. Everyone not included in the categories below falls into this category.
2. That an investigation is occurring. This includes people in leadership roles who need to make decisions based on the investigation or those whose operations might be affected, such as a supervisor who needs to release and substitute employees who will be interviewed as witnesses.
3. Identities of the parties involved in the investigation. This includes the supervisor of a person being placed on administrative leave, those implementing interim actions, and those needing to acquire evidence pertinent to one or both parties, such as personnel records or travel records.
4. Details of the complaint. This should be a very small group, including those responsible for handling the complaint, the person or persons formulating the action plan, or those who need to know some specifics to aid in fact finding (e.g., an IT professional doing a keyword search).

The need-to-know analysis helps prevent unnecessary disclosure of information. It is recommended that your organization provide the persons engaging in action planning some  guidance around the need-to-know standards. Note, that while your organization must operate on a need-to-know basis in handling reports, they must not prohibit others in the organization from discussing that an investigation is underway.¹ They may however instruct employees participating in a fact finding not to discuss the questions they have been asked or the answers they provided.

¹ See:  Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019). Employees not involved in an investigation are free to discuss such incidents without limitation, and employees who are involved may also discuss them, provided they do not disclose information they either learned or provided in the course of the investigation. Further, the rules do not restrict employees from discussing workplace issues generally or limit the employees’ ability to discuss disciplinary policies and procedures.

If the preliminary decision-making process or preliminary inquiry prompts additional fact finding, determine if that fact finding can be conducted internally or whether you need to engage an outside firm. Be realistic about your organization’s ability to do this work. Formal fact finding requires training, so if this is not a skill set within your organization or you lack the capacity to train people, seek these services externally. When to Bring In An Outside Investigator, in the Supporting Resources section, can help with this decision.

The language in your Policy should include a commitment to investigating reports in a manner consistent with the nature of the allegations and the complexity of the matter. Formal fact finding (as opposed to preliminary inquiries) should minimally include interviewing the complainant, the respondent, and witnesses determined to be essential to acquiring a clear understanding of the facts. Formal fact finding may also include examination of physical, digital, or forensic evidence.

Supportive measures involve an affirmative effort on the part of the organization to offer both the complainant and respondent supportive resources following the reporting of a concern (complainant) and notification of the report (respondent). Regardless of whether a complaint involves prohibited conduct that must be investigated or interpersonal conflict that can be resolved with a supervisor, the organization should incorporate supportive measures into the Action Plan. Examples of supportive measures include providing information about confidential resources available in the community or identifying a “process support person” who can answer questions about what to expect in a fact-finding process. The individuals providing support and checking in with one party should never be the same as the individual providing support and checking in with the other party.

Other supervisory actions are additional steps needed to ensure that actions taken by the organization are enacted as intended and regardless of the decision to investigate. For instance, a change in physical work location for one of the involved parties may need to be reviewed to identify potential conflicts or arrange for proper IT support. Another example is to provide coaching or mediation for the individuals involved.

Problem solving is an opportunity to explore non-supervisory actions to address the concerns expressed in the complaint or broader organizational issues that may have contributed. Problem solving might include planning an organization-wide training to clarify shared expectations, revision to policies to prevent future instances, climate or cultural assessments, and ongoing facilitated dialogue to promote a culture of safety, respect, and equity.

.