No Result
View All Result
SUBSCRIBE | NO FEES, NO PAYWALLS
MANAGE MY SUBSCRIPTION
NEWSLETTER
Corporate Compliance Insights
  • Home
  • About
    • About CCI
    • Writing for CCI
    • NEW: CCI Press – Book Publishing
    • Advertise With Us
  • Explore Topics
    • See All Articles
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Internal Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Well-Being at Work
    • Leadership and Career
    • Opinion
  • Vendor News
  • Career Connection
  • Events
    • Calendar
    • Submit an Event
  • Library
    • Whitepapers & Reports
    • eBooks
    • CCI Press & Compliance Bookshelf
  • Podcasts
  • Videos
  • Subscribe
  • Home
  • About
    • About CCI
    • Writing for CCI
    • NEW: CCI Press – Book Publishing
    • Advertise With Us
  • Explore Topics
    • See All Articles
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Internal Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Well-Being at Work
    • Leadership and Career
    • Opinion
  • Vendor News
  • Career Connection
  • Events
    • Calendar
    • Submit an Event
  • Library
    • Whitepapers & Reports
    • eBooks
    • CCI Press & Compliance Bookshelf
  • Podcasts
  • Videos
  • Subscribe
No Result
View All Result
Corporate Compliance Insights
Home Featured

Investigating Employee Complaints: Managing Expectations

How Best to Handle Workplace Investigations

by Amy Oppenheimer and Christina Ro-Connelly
November 2, 2020
in Featured, HR Compliance
detective sitting in dark room with witness

When you’re staring down a workplace investigation, knowing what’s ahead is key to keeping cool. Amy Oppenheimer and Christina Ro-Connelly offer tips on when to bring in an outside investigator, what sort of investigator to hire and what to expect during the process.

Companies today have their hands full determining how to apply accommodations, wage and hour and disability laws to the COVID-19 pandemic. In addition, employee complaints relating to discrimination, harassment and bullying are on the rise. Sexual harassment on Zoom? Yes, it happens. Racial microaggressions around every corner? Perhaps.

EEO complaints and complaints relating to mistreatment and retaliation are skyrocketing. Often, companies lack the internal resources to triage these complaints and conduct a proper investigation. But improper investigations are costly: They can impact employee morale, send the wrong message and lead to unnecessary litigation.

Here are some tips on when to bring in an outside investigator, what sort of investigator to hire and what to expect during the investigation.

When to Investigate

The point of an investigation is to find facts an employer is unsure of. When you receive a complaint or become aware of concerns, ask: If this complaint were true, would we take action? Sometimes the complaint gives rise to a legal issue. Other times it implicates your values and ethics. Ignoring a complaint sends the wrong message to employees and, ultimately, the public. You must evaluate whether the complaint itself, if true, might do any of those things. If the answer is yes, you will want to get more information – that is, investigate.

Who Should Investigate

If you have an experienced internal investigator who does not have conflicts, have them handle the investigation. If not, you may need to outsource. Keep in mind that most states have laws restricting who can do investigations. By way of example, California requires workplace investigations to be conducted by an employee of the company, a licensed private investigator or an attorney. Thus, you will likely be hiring either a licensed private investigator or an attorney.

  • Licensed private investigators are often retired police officers who typically investigate the types of issues loss-prevention covers: theft and fraud. They usually cost less than attorneys. Some private investigators have experience investigating harassment and discrimination complaints, but do your due diligence before hiring one in EEO and employee-relations matters. An investigator who is not sensitive to the issues being investigated can lead to unintended consequences.
  • Attorneys with an employment law background may conduct investigation work in their practice or, increasingly, limit their practice to conducting investigations. While their hourly rate may be higher than a private investigator, it’s often worth it. Again, exercise due diligence, find out how much experience the attorney has doing investigations and get a realistic estimate of the costs. It’s best not to use your usual outside counsel, as conflicts can arise. However, it would be prudent to use your outside counsel to help find and vet an investigator and to communicate with that investigator during the course of the investigation.

Many complaints involve concerns about race, gender and other protected-class issues. However, an investigator who is tone-deaf about racism or sexism or who uses antiquated terms in referring to people of color or the LGBTQ community can be problematic. Part of the vetting process should include determining if the investigator has the cultural competence to do the investigation they are being hired to do.

Managing the Investigation

Once you retain the right person for the job, you must give that investigator the freedom to do their job and be truly independent. Too often, employers fall into the trap of micromanaging the investigation, potentially raising questions about the integrity of the outcome. While you should not be involved in making certain discretionary decisions, you will need to assist in managing the process along the way. Assign someone (or more than one person) to act as point persons for the investigator, assisting with both substantive questions that arise and any administrative issues.

Here are some of the issues and questions that will come up:

Scope

Make sure you and the investigator are on the same page as to the scope of the investigation. This is a substantive, foundational issue. If the scope is too broad, the investigation might get unnecessarily long and expensive without assisting you in what you need to know. For example, most employers don’t want an outside investigator to look into “micromanaging” allegations or other management issues unless they are clearly tied to allegations of differential treatment.

On the other hand, too narrow a scope can also be problematic. If an employee complains she was harassed and, when she told her manager, he reassigned her, then both the harassment and the reassignment (potential retaliation) should be investigated. Failing to explore both will not capture all the legal issues that were raised.

Finally, be sure to consult with inside or outside counsel about the scope of the investigation, ensuring everyone is clear about scope from the outset. As the investigation progresses, questions about expanding or contracting the scope may arise. Designating a point person for the investigator to consult with about this issue will help the process move along more efficiently.

Scheduling

Scheduling is an administrative matter that need not be done by a high-level employee, but it should be done by a confidential employee who, if at all possible, is not involved as a witness. It is easier and less expensive to have someone from the employer’s place of business do the scheduling rather than expecting the investigator to do it.

Pre-COVID scheduling involved finding a private place for the interview, which maintains confidentiality. Post-COVID, most interviews are done via video conference, making it easier for the investigator to schedule once the witness or party has been notified of the investigation and introduced to the investigator. Introductions are typically handled via e-mail.

Interviews with Employees and Non-Employees

The investigator must have the freedom to determine who should be interviewed. Typically, after conducting an intake with the complainant, the investigator will provide a witness list to you.

Before commencing interviews, the employees are usually notified in advance whether they are the respondent (that the complaint is against them) or a witness. You may also notify the employee, often in writing, of the need for confidentiality and the expectation that they will cooperate and tell the truth. The respondent is usually informed of the type of complaint brought against them without being given details. This is so the investigator can interview them without their having been primed. With witnesses, employers often tell them about the personnel complaint and investigation without giving any detail.

Sometimes the investigator will want to speak to a former employee or someone else who doesn’t work for the employer, such as the bartender who was serving drinks and may have overheard comments or seen conduct. Investigators often give the employer contact a heads-up that they will do this and will either request an introduction or will make the contact on their own. Some employers prefer not to interview anyone who does not work for the employer. Such a practice must be weighed against the need for thoroughness. For crucial witnesses, consider foregoing that practice.

Communicating During the Investigation

There must be some communication during the course of the investigation. In addition to the matters discussed above, you will reasonably want updates about timing to know if other issues of concern arise – especially if you’re considering placing someone on leave. You should designate a point person for this communication. However, limit the people involved to as few as possible.

Some employers want daily updates. They may press the investigator for impressions as the investigation progresses. However, most investigators are careful not to give preliminary findings. Keeping an open mind until all the evidence is in is an important part of conducting an investigation. Daily updates can feel like pressure, and it’s best not to exert pressure. A weekly update is more realistic.

Expectations Regarding Timing

Investigations should be timely and thorough. Some are more time-sensitive than others. For example, an investigation where someone is on leave pending the outcome of the investigation or that involves allegations of ongoing harassment is more time-sensitive than an investigation of a pay issue or of harassment that occurred in the past.

The process of locating and engaging an outside investigator may take a week or two. It’s a good idea to vet some investigators before you need them so you can move quickly if you get a complaint.

Once you retain an investigator, expect the interview process to take two to six weeks, depending on everyone’s schedules and the number of witnesses that need to be interviewed. Sometimes you’ll encounter delays beyond anyone’s control, such as critical parties or witnesses who are out on medical leave. Once the interviews are complete, most employers want a full written report. It may take two or three weeks for the investigator to prepare this. Most investigators will provide a draft so the employer can ask for clarifications and point out clerical errors, such as an incorrect job title. Once the review is complete, the report can be finalized.

Delivering the News and After-Investigation Issues

Once the investigator provides their written report, their work is usually done. You then decide what action to take as a result of the findings and inform the parties of the outcome. Some employers request an executive summary of the report that they can provide to senior leadership, board members and/or the parties themselves.

In Summary

While the process of conducting an investigation may appear to be a big task, the investigation has become a necessary part of most employers’ personnel practices. The consequences of not properly investigating an employee complaint can be significant, particularly in the event of litigation. However, understanding the investigatory process is a significant step toward ensuring that your employees’ concerns are being addressed, thus promoting a workplace that is free from harassment.


Tags: DiscriminationHarassmentInternal Investigation
Previous Post

Airline Services Limited Fined $2.9M by Serious Fraud Office For Failure to Prevent Bribery

Next Post

Gartner Says High Levels of Change for Employees Has Created Compliance Risk

Amy Oppenheimer and Christina Ro-Connelly

Amy Oppenheimer and Christina Ro-Connelly

Amy Oppenheimer is the Managing Partner of the Law Offices of Amy Oppenheimer. A leading expert in the field of workplace investigations, she has more than 30 years of experience in employment law, as an attorney, investigator, arbitrator, mediator and trainer for a large range of employers and employees – public and private, large and small – throughout the country.
Christina Ro-Connelly is a Partner with the Law Offices of Amy Oppenheimer. She has more than a decade of labor and employment law experience, and for the past two years, she has handled over 40 investigations involving allegations of discrimination and harassment, allegations of abusive conduct, sexual misconduct, retaliation and workplace misconduct. She has handled investigations against high-level executives and elected officials and has experience in both the public and private sectors.

Related Posts

mcds

What Charges Against Former McDonald’s CEO Can Teach Us About Investigations of Senior Officers

by Lloydette Bai-Marrow
January 18, 2023

The case of Steve Easterbrook, the former CEO of McDonald’s, is a salutary lesson in the dire consequences of failing...

2023 Higher Education Compliance Conference

2023 Higher Education Compliance Conference

by Aarti Maharaj
November 7, 2022

Get the latest insights in higher education compliance. Attend SCCE’s Higher Education Compliance Conference, June 11–13, 2023 in Phoenix, and...

avoiding pitfalls outside counsel

How Can Outside Counsel Sidestep Ethical Pitfalls in Internal Investigations of Antitrust Wrongdoing?

by Miller & Chevalier
June 8, 2022

DOJ has sharpened focus on individual accountability — and on health care. This signals an uptick in internal investigations involving...

A person canoes into a brain maze.

Successful, Happy Audits: Dealing with Difficult Auditees

by Salman Raza
March 22, 2022

Over the course of your career as an internal auditor, you will eventually encounter a difficult auditee. In these instances,...

Next Post
hiker standing on mountaintop at sunrise

Gartner Says High Levels of Change for Employees Has Created Compliance Risk

Compliance Job Interview Q&A

Jump to a Topic

AML Anti-Bribery Anti-Corruption Artificial Intelligence (AI) Automation Banking Board of Directors Board Risk Oversight Business Continuity Planning California Consumer Privacy Act (CCPA) Code of Conduct Communications Management Corporate Culture COVID-19 Cryptocurrency Culture of Ethics Cybercrime Cyber Risk Data Analytics Data Breach Data Governance DOJ Download Due Diligence Enterprise Risk Management (ERM) ESG FCPA Enforcement Actions Financial Crime Financial Crimes Enforcement Network (FinCEN) GDPR HIPAA Know Your Customer (KYC) Machine Learning Monitoring RegTech Reputation Risk Risk Assessment SEC Social Media Risk Supply Chain Technology Third Party Risk Management Tone at the Top Training Whistleblowing
No Result
View All Result

Privacy Policy

Founded in 2010, CCI is the web’s premier global independent news source for compliance, ethics, risk and information security. 

Got a news tip? Get in touch. Want a weekly round-up in your inbox? Sign up for free. No subscription fees, no paywalls. 

Follow Us

Browse Topics:

  • CCI Press
  • Compliance
  • Compliance Podcasts
  • Cybersecurity
  • Data Privacy
  • eBooks Published by CCI
  • Ethics
  • FCPA
  • Featured
  • Financial Services
  • Fraud
  • Governance
  • GRC Vendor News
  • HR Compliance
  • Internal Audit
  • Leadership and Career
  • On Demand Webinars
  • Opinion
  • Resource Library
  • Risk
  • Uncategorized
  • Videos
  • Webinars
  • Well-Being
  • Whitepapers

© 2022 Corporate Compliance Insights

No Result
View All Result
  • Home
  • About
    • About CCI
    • Writing for CCI
    • NEW: CCI Press – Book Publishing
    • Advertise With Us
  • Explore Topics
    • See All Articles
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Internal Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Well-Being at Work
    • Leadership and Career
    • Opinion
  • Vendor News
  • Career Connection
  • Events
    • Calendar
    • Submit an Event
  • Library
    • Whitepapers & Reports
    • eBooks
    • CCI Press & Compliance Bookshelf
  • Podcasts
  • Videos
  • Subscribe

© 2022 Corporate Compliance Insights

Welcome to CCI. This site uses cookies. Please click OK to accept. Privacy Policy
Cookie settingsACCEPT
Manage consent

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
CookieDurationDescription
cookielawinfo-checbox-analytics11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checbox-functional11 monthsThe cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checbox-others11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-necessary11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-performance11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy11 monthsThe cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Performance
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytics
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Advertisement
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
Others
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.
SAVE & ACCEPT