Theft, misconduct and poor performance may all be situations that may require either a nominal or a formal investigation. How an investigation is handled can make the difference between winning and losing a lawsuit. Courts are not looking for a case to be proved beyond a reasonable doubt, but simply for a good faith investigation with a reasonable conclusion.

When to Investigate

During the initial meeting with the employee raising the issues, it's important to get the facts. Find out the specifics: Who, What, When, Where, Why and How to determine whether a formal investigation is necessary.

A formal investigation should be conducted if the following apply:

• A single answer will not resolve the problem
• Other employees are involved
• Additional facts are needed for a conclusion

Allow the employee raising the issue to assist in deciding whether you are the right person to conduct the investigation. Assure the employee that you will be fair and impartial.

It is advisable to have more than one person who is trained and competent to handle the investigation. It is also good to have someone from each gender.

Planning the Investigation
Determine what issues and guidelines apply to the situation and what the company's obligation is. Find out how the issues have been previously addressed. Determine who should be interviewed and the order in which they should occur. Develop the questions and prepare for questions that will be asked by the interviewee.

For example: Is this confidential? Am I being investigated? Am I going to get into trouble if I tell what I know? Be careful not to grant immunity easily. Instead, let the employee know you will decide after you hear all the facts. Try to minimize the risk of retaliation and protect the integrity of the investigation.

During this time, decide if any interim disciplinary actions, such as suspension, are necessary prior to conducting the investigation. Consider whether a suspension will make things better or worse. If a suspension is in order, write the suspension documentation in advance.

The Investigation
Begin by interviewing the person and providing them with the details of the claim. Put the interviewee at ease and explain that no conclusion has been reached. Begin with broad questions and narrow discussion to specifics. Ask the tough questions. Listen to the answers and follow up with questions as needed.

Determine who was involved, what, when, where, why and how the situation occurred. Explore possible ill motives. Ask the interviewee if she/he has any idea why the accuser would fabricate the situation and if they ever had other conflicts with that person. Determine if there are other employees who should be interviewed.

Close the interview by relating the seriousness of the investigation, reminding the employee of the confidentiality and encouraging her/him to come back with any additional information.

Assessing Credibility
After conducting the interviews, it is time to assess the credibility of the parties involved. Review the order of events. Consider the demeanor of the employees involved. How did they act or react? Determine if any information was left out. Which side of the story makes sense? Did any of the interviewees or witnesses deny any information. Were there conflicting statements? Were explanations plausible?

Make a Recommendation
With all the information gathered, a recommendation or decision can be made. The violation, past practices of the company, and federal and state regulations need to be considered.

When necessary, select a disciplinary action that fits the infraction. Have someone else validate your conclusion. Have a process for the accuser to appeal the decision. Close the investigation by making all involved parties aware of the conclusion and documenting the appropriate files.

HRM Update

VACATION POLICY QUESTIONS

Following are issues that every vacation policy should address:

1. How does vacation time accrue?

While it may seem to be a simple question, the answer is not always clear, and it's one of the most commonly raised questions from employees. For example, some companies' vacation policies allow vacation time to accrue from each pay period, or each month of service.

Alternatively, an employer's plan may provide that employees are credited with two weeks of vacation as of June 1st of the first year of employment, and additional vacation in 5 year increments.

What if an employee hired on July 1st leaves on May 1st of the following year. Does the employee get credit for 11/12ths of that two weeks? Or does the employee completely forfeit any entitlement because he or she was not employed as of the accrual date? Whatever alternative your company decides upon should be set forth in writing.

2. How much vacation time can be stockpiled?

There are several options.

Any unused vacation time not taken by the end of the calendar year or the employee's anniversary year, is forfeited.

Only the accrued portion above a certain number of hours or days is forfeitable.

"Pay-Out" any unused vacation

3. When must vacation time be used?

Some companies, especially seasonal businesses, require that vacation time be used only during a certain time of year (e.g. June 1st through October 1st) and forfeited if not used then.

4. Can an employee forfeit vacation pay due to certain actions?

In the state of Illinois, companies are required to pay any terminated employee all vacation time that has been accrued and not yet used.

5. Do employees accrue vacation while out on disability leave, workers' compensation, or FMLA?

Some companies prevent accumulation after the employee has been absent from work - for whatever reason - for given periods of time, such as 30 days.

6. Can employees work through vacation?

Is working through vacation allowed, and if so, under what circumstances? Who can do it? Is length of service with the company a factor? Can it be taken the following year?

7. Are employees adequately notified about the company's vacation policy?

For example, do they know how vacation accrues, forfeiture policies, and what they're entitled to upon termination? Employee notification is an important component of your vacation policy, because without adequate employee notification, your company may have a difficult time convincing a court that its policy is what it says it is.

8. Is vacation allowed to be taken in one-half day, or daily increments?

9. Do vacation hours count towards weekly overtime?

The Employers Association

CLINTON SIGNS 6 MONTH I-9 EXTENSION INTO LAW

On October 6, 1997, President Clinton signed into law a measure extending the life of the current Form I-9 for another six months. The Immigration and Naturalization Service (INS) was charged with reducing the number of acceptable documents for employment verification and publishing a new I-9 form by September 30, 1997. The new I-9 form is not yet ready for publication, and the President has given INS an additional six months to change the I-9 and reduce the number of acceptable documents for employment verification.

The INS issued interim rules on September 30, 1997. Under the interim rules, no changes were made to List B, documents evidencing identity, or List C, documents evidencing work authorization. List A, documents that evidence both identity and work authorization, has been changed. The new List A:

1. A U.S. passport
2. An Alien Registration Receipt Card or Permanent Resident Card (form I-551)
3. A foreign passport with a Temporary I-551 stamp
4. An Employment Authorization Document (EAD) issued by the Service which contains a photograph Form I-766, Form I-688, Form I-688A, or Form I-688B
5. In the case of a nonimmigrant alien authorized to work for a specific employer, a foreign passport with Arrival-Departure Record (Form I-94) bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status may be used, so long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form I-94.

No Enforcement Actions

Since these changes are being implemented with little advance public notice and without any revisions to the existing Form I-9, the INS will forego enforcement actions against employees who continue to act in reliance upon and in compliance with existing employment verification forms, guidance, and procedures. This non-enforcement action policy will remain in effect until the new document reduction program, together with a revised Form I-9 and guidance to employers can be implemented.

SHRM

MEAL AND BREAK PERIODS

Two recent cases concerning breaks/meals have been well publicized in the news. You may have read that Southern New England Telecommunications Corp. had to pay $14.5 million in back pay to 1500 employees and Wal-Mart had to pay $325,000 in back pay to 933 employees for requiring their employees to work through their meal periods. Both companies required their employees to "guard against theft" while on a meal break. Therefore, the meal time should have been compensated. Following are the state/federal rules in regards to breaks and meal time.

Employers in Illinois are not obligated to offer a break period to their employees. However, in Illinois, every employee scheduled to work seven and one-half consecutive hours or more must be given an uninterrupted 20-minute meal period, during that time, beginning no later than the end of the fifth hour. There are no federal laws that address this subject.

If your company does offer breaks for employees, the Fair Labor Standards Act (commonly called the wage/hour law) addresses the issue. A break period of 20 minutes or less is to be counted as time worked. Meal periods are not counted as time worked if the employee is completely relieved from duty for the purpose of eating a meal. Thirty (30) minutes or longer is enough time for a bona fide meal period. Payment for this time is not required. There are no specific regulations governing eating facilities, nor must employees be given the right to leave the premises during the meal period. Keep in mind the Fair Labor Standards Act gives guidance on how to compensate for breaks if your company offers them - the Act does not require them to be offered.

The Employers Association

WHY THE WRONG PEOPLE ARE HIRED

Ever wonder how a poor performing employee with no work ethic was hired in the first place? The person who made the hiringdecision may have made one of several common and easily avoidable mistakes.

Convincing yourself you don't have time to do the job right. Time is short and work plentiful, so you're anxious to hire someone quickly before more time and money are lost. But consider the cost of making a hiring mistake. A $35,000-per-year employee can represent a five-year investment of nearly $210,000. If you were choosing a $200,000 copier you'd probably assemble a task force and spend considerable time investigating options before making a recommendation.

Failing to define what you want in a candidate. Starting the interview process before clearly defining the duties of the job can only lead to trouble. Or perhaps you're looking for the wrong things. Make sure the qualities you're looking for in a candidate are the ones that will make the biggest difference in the job. And be sure to advertise and market the job to the right candidates.

Making a decision based on "gut" feeling alone. While many questions about a candidate can be answered in the first 30 seconds of an interview, qualities such as handshakes, posture and grooming are not reliable predictors of success.

Presenting the job inaccurately. It's easy to find yourself touching lightly on the tough aspects of a position to persuade a good candidate to take it. Instead, make sure you help applicants make informed decisions. It's better to have someone say "no" to the position when it's offered instead of two weeks after starting the job.

HRMagazine, HRM Update