Internal Investigations and Volunteers
Nov. 9, 2016
Since nonprofits are supposed to make the world a better place, it can be traumatic when someone is suspected to be engaged in wrongdoing. If someone on the team is accused of fraud, embezzlement, or harassment, leadership handle an investigation carefully and appropriately.
Nonprofit investigations are often unique because volunteers might be important witnesses, and the nonprofit might not be able to learn much about the situation if volunteers don’t cooperate with the investigation. Since volunteers are often critical witnesses, is it possible for nonprofits to require them to cooperate with an investigation? In order to answer that question, we begin by considering whether or not an organization is able to compel employees to cooperate with an investigation. After all, if employees cannot be forced to speak with an investigator, it seems unlikely that a nonprofit could require cooperation from volunteers.
Employers generally have the right to terminate employees who don’t cooperate with investigations. The employer might have a policy requiring cooperation, but that’s not always the case. Generally speaking, as long as HR is certain that the employee at issue could not succeed with a claim of discrimination, harassment, or retaliatory conduct, the company can fire the employee if the party refuses to speak to an investigator. Technically, termination does not “force” an employee to speak with an investigator. It’s a negative consequence for the employee if he or she fails to cooperate. Termination of an employee should never be taken lightly, especially when there is a claim of wrongdoing. The better option is to make sure everyone involved in the investigation understands that the company is committed to protecting their confidentiality and that no one will be subject to retaliation for what they tell the investigator.
As you can see, in most cases a company cannot force an employee to cooperate with an investigation, and likewise, volunteers can rarely be forced to cooperate. The good news is that nonprofits are able to strongly encourage volunteers to cooperate by following best practices. For example, it might help to have a volunteer agreement or volunteer policies that include requirements to cooperate with investigators, although volunteer policies and agreements might be overkill for some less sophisticated organizations. It only takes a few minutes of searching to find generic and low-quality examples of volunteer agreements and policies online, For example, you probably will not find a quality volunteer agreement with a provision that volunteers to cooperate with an investigation. Just as with employees, you cannot “force” volunteers to cooperate, but you can terminate their volunteer relationship as long as you are consistent and are not treating people in a discriminatory manner.
It’s important to have a plan in place before you ask employees and volunteers to participate in an investigation. Visit with a professional now to determine whether you should include a requirement to cooperate in handbooks or policies for both employees and volunteers. Once you’ve made that decision, enforce your rules in a fair and consistent manner.
 There is an important caveat—in certain instances, an employee or volunteer may be forced to cooperate, but the government would typically be involved in those cases. Potential child abuse is one such example, but there could be other sensitive areas in which companies or government agencies have certain powers to investigate employees and volunteers that are greater than the power of typical companies to force cooperation.