How to Choose the Right Investigator for Workplace Misconduct
Deciding who will conduct a workplace investigation can be a tricky process. In addition to finding the most cost-effective solution, (covered in yesterday’s blog), the traits of the actual person or people doing the investigating can be just as important to the outcome.
“How companies respond when allegations of inappropriate workplace behavior arise reflects their values and has the potential to influence employee morale and the workplace environment,” says Xan Raskin, owner of New York human resources consulting firm Artixan Consulting Group LLC.
“Employers are held responsible for conducting a thorough and prompt review of employee complaints,” she says. “However, investigations that are managed internally face several challenges. Employees routinely perceive them as biased, and HR professionals can be placed in an awkward position, especially if senior-level or management personnel are involved.”
A Case for Outsourcing
Hiring an outside investigator or firm is often the most effective way to handle a corporate investigation, but with so many to choose from, the decision can be overwhelming. Aside from offering a competitive price, investigators should possess certain qualities, say the experts.
“Because an investigator needs to remain unbiased and should not demonstrate empathy towards the complainant, the accused wrongdoer or any other individuals interviewed such as eye-witnesses or co-workers, the investigator needs to utilize other skills to build the right rapport,” says Raskin. “An excellent investigator knows how to ask the right questions and, more importantly, knows how to listen and to demonstrate that they have listened,” she says.
Importance of Experience
The right investigator will have corporate experience, says Daniel Draz, a CFE and economic crime professional and founder of Fraud Solutions.
“Corporations all do business differently but understanding the corporate business structure, nuances of corporate business and how to navigate corporate waters helps insure smooth sailing,” says Draz. “An individual who has worked in ‘Corporate America’ conducting these types of investigations versus someone who simply has worked in law enforcement without private sector experience generally brings more value to the table than someone who hasn't, especially when the timing of every investigative step is important,” he says.
A good investigator should also understand how to handle evidence effectively. “Proper evidentiary handling practices ensures evidence doesn't get spoiled... When even the best, most incriminating, evidence gets tossed for whatever reason, it may lead to corporate liability,” says Draz.
An investigator should have good knowledge of relevant employment laws, he adds. “Employees (even those suspected of criminal activity) have rights. Violating these employment rights or laws may have negative financial consequences (liability) for the employer even if the employee has done something wrong. Internal investigations are also regulated by the FCRA and internal investigations should be conducted in strict accordance with this federal act,” says Draz.
Two Heads are Better Than One
“Often it is advisable for there to be two investigators,” says Bill Nolan, Managing Partner at Barnes & Thornburg LLP . “In any setting, it allows one investigator to focus on the witness and making good eye contact, the other investigator to take thorough notes and ‘backstop’ the primary questioner,” he says.
“Should there ever be the need for testimony about the interviews, it creates the ability for the two investigators to corroborate each others' stories. And if one of the investigators is a lawyer, it is often advisable to have a non-lawyer present,” says Nolan. “This issue varies state to state, but this approach may avoid the need for the lawyer to testify about the interviews (which in turn can disqualify the company's usual lawyers from representing it in the proceeding).”
Finally, Nolan advises, “If the investigation involves potential discrimination, it is often advisable to have one of the investigators be a member of the protected class of which the complaining employee is a member.” He advises against, for example, having two men investigate a female employee’s sexual harassment complaint.