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:
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 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.
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.