I am a consultant who does approximately sixty employment investigations a year. Generally, these investigations involve serious or complex claims or involve claims against corporate officers. My job is to seamlessly penetrate the workplace, interview key witnesses, review relevant documents, collect evidence, assess the credibility and find facts. In doing so, I must be scrupulously neutral and completely independent – not always easy when there are many with “skin in the game.”
As an expert employment investigator, I am also called upon to judge the work of others. Both plaintiff’s and management attorneys contact me to review their client’s or opponent’s investigation to render an opinion as to whether the investigation was adequate or sufficient. Many times, I find that I both surprise and disappoint these attorneys by opening contrary to their expectations. That the errors I find are at times egregious, such as failing to interview the accused, telling complainants that they will be fired if their complaint is not sustained (and writing it down!) or the “investigator” writing a statement of their own choosing and giving witnesses a chance to sign or refuse to sign the statement, continues to surprise me. That the attorneys expect me to support these practices appalls me.
I like to think of myself as a capacity builder – someone who teaches the companies and attorneys who hire me the very best practices. I have spoken at national legal conventions, state bar conventions and a variety of iterations of SHRM or its local affiliates throughout the nation. In addition, I have done in-house investigative training for companies large to small. In these endeavors, I tout investigations that are done according to the rigorous protocol, with an eye to professionalism, fairness, and accuracy. In doing so, perhaps I have come to accept that there is widespread understanding of “the basics.” This is an effort to discuss those “basics” in a straightforward and hopefully helpful way. The following then is a list of the ten essential qualities of a defensible, professional and neutral investigation.
1. Establish “standard practice” for investigations in your organization and don’t deviate without careful consideration. This should include well-thought-out policies regarding the scope of organizational need-to-know, interviewing practice (2:1? 1:1?), whether or not you obtain written statements and when recording or not recording interviews and how parties are to be separated in the workplace pending the outcome of an investigation. These are important issues that require research, thought, discussion and dissemination. In the scrutiny of investigations, inconsistent practice is the enemy.
2. Conduct Investigations that are fair and transparent. Avoid investigations that take the tone of interrogation or cross-examination. Questions should be open-ended, and parties should be permitted to tell their “story” without being driven towards the investigator’s expected outcome. Additionally, interviewees should be told the consequences of not cooperating, the way their information will be used, the reasons to refrain from discussion about the matter, and about protections from reprisal and retaliation. In the best of worlds, this should be done in written form so they can take it with them should they have questions later.
3. Interview effectively. A good interview allows for an individual to present their perspective on a situation prior to being asked to detail specific facts. The psychology of employee complaints suggests that rushing to get the details will net an investigator less accurate information than if the employee is first able to respond to a wide-open question such as “what happened between you and John this morning?” Once the narrative has been completed, clarification should be elicited through neutral, fact-oriented questions, and only once this is complete should the interview take on a tone of challenging or attempting to break down the facts presented.
4. Assess credibility.
Many investigators throw up their hands and find they can’t draw conclusions because it is a “he said, she said” case. Very often, these cases can turn on the credibility of one or more of the parties. Investigators should consider things such as contemporaneous complaints or documentation, prior untruthfulness, motives to lie or to be truthful or versions of events that in some way don’t hold together properly. Investigators must document the basis for such credibility assessments and be persistent in testing the credibility of parties. Often a credibility assessment will generate at least a “sense” of which version was more likely to be true.
5. Gather evidence. We live in a world full of electronic footprints. Card swipes, e-mail, texts, surveillance cameras, cell phone chips, computers, iPads, and iPods, USB sticks, pagers, smartphones and more create a track of data we should and can exploit. There are certain limits, and one should clearly be operating inside legal boundaries, but for the most part, if it is an employer-provided electronic device, the employer has access. The two rules of evidence gathering are; once you know there is evidence (a diary, contemporaneous documentation, and email) take possession of it immediately, and make sure the person who provides the evidence agrees that it is authentic.
6. Avoid leakage. Up until the investigator is prepared to draw conclusions, others should not be briefed about initial impressions, premature conclusions, or intended interviewees. The only information that should be shared is that which an individual must know in order to allow the investigation to be conducted. This will irritate many a manager and executive, but such sharing of information creates a greater probability of reprisal claims as well as a greater probability the investigation will be seen as biased.
7. Maintain independence. Interview those who need to be interviewed, review documents that must be reviewed, seek out witnesses who have not come forward and interview those fearful of reprisal away from the workplace or by telephone if necessary. Do not under any circumstances be dictated by a list provided to you of who you should or must interview, and certainly do not let yourself be constrained by an organization’s insistence that you refrain from interviewing certain parties. If these are the conditions of an investigation, it is flawed and will be judged appropriately.
8. Don’t lawyer the investigation. Investigations are fact-finding exercises, not the forum for legal analysis. Law degree or no, this is not the place to determine whether conduct was unlawful, or whether it rises to the standard of a hostile environment, or to point out theories of defense. Facts are facts, and the investigation should stand on findings of fact that are supported by the interviews, evidence and credibility assessment. If the employer subsequently concludes that policies have been violated, or litigation is pending, the facts should be used as the basis for an attorney’s (NOT the investigators) legal advice.
9. Don’t label. An investigation is an attempt to find facts. A neutral investigator assumes nothing. Therefore, there is no such thing as a “sexual harassment investigation,” and an investigation should not be termed such. Rather, there is an investigation into allegations of misconduct. Period. By prematurely classifying the outcome of the investigation, one is creating far more spin on their enterprise than is desirable. Furthermore, refrain from describing investigations as “substantiated” or “unsubstantiated” or “true” or “false.” Any time in the world of employment investigations will expose a person to the reality that the facts found rarely fully support the complaint or the response, but fall somewhere between.
10. Know when to use an outside investigator. Sure, an outside investigator bring with him or her an extra cost, but when the matter is complex, there is a high risk of litigation, the person accused of wrongdoing is high status, or the internal investigators are relatively inexperienced, the cost of an investigation without sharp corners can create unnecessary and very costly exposure. The Human Resources professionals I train do several investigations a year. Most external investigators do in excess of 30. Would you pick a surgeon who had done a procedure a few times over one who knew how to do a procedure at an expert level? Experience is truly important in high stakes investigations, and your internal people will learn a lot from how it is done.
