Workplace 

Investigations

In the workplace, employees, managers, and executives, often commit
acts or are accused of committing acts, that may violate workplace policies and safety practices, or that may be unethical, discriminatory, involve allegations of harassment, or other illegal activity, or may involve countless other complex employment issues and these incidents can
require a fair and comprehensive workplace investigation. ​​
In all of these cases, the fundamental principle of Due Process must
be applied. There are some fundamental and systematic steps and
procedures that are essential and must be followed to ensure fair
treatment of those accused of wrongdoing or misconduct in the
workplace. An objective investigator must remain neutral and be
concerned with the rights of the accused, as well as the complainant.

Any misstep in the process can lead to a flawed result.
   
Due Process increases the likelihood that the investigation and its results will not be challenged, or if challenged, the results are more likely to be upheld. It also helps to ensure that a level of respect, for both employee
and the employer, is maintained throughout the process.
 
Across the country, legal decision-makers are increasingly reviewing employers’ workplace investigation efforts and finding them deeply flawed.
A flawed process is often at issue. Flawed processes lead to flawed results.
A properly conducted workplace investigation can mean all the difference in protecting your organization from further loss or liability.
 
Investigations, particularly faulty investigations, and notably, the adverse employment actions resulting from them, often become the basis for litigation involving claims of defamation, harassment, discrimination, wrongful termination, financial improprieties, or other employment issues.

​While the desire to discipline or terminate someone immediately without
a full investigation may be quite strong—emotions often run high in these situations — the importance of a comprehensive, properly conducted investigation cannot be overstated. Employers must be careful of a rush
to judgment, of taking employment actions based on allegations alone without a properly conducted investigation; employers are legally obligated to conduct a prompt, fair, and impatial investigation and employment decisions must be based upon facts, not allegations. 

Each issue and investigation is unique. Each matter brings a different set of individuals, a different set of circumstances, and different set of facts. Employers, as well as employees, are best served and protected through  an impartial and objective independent investigation. 
    
  
During the course of the investigative process, it often becomes
evident that issues can run much deeper within the organization and frequently become far more complex, than may have originally been anticipated. ​It can also become apparent that it involves a greater number of subjects, issues, and witnesses, than the complaint initially indicated, magnifying the need for an external, independent, objective investigation by an experienced professional investigator.

Conducting a thorough and comprehensive investigation is an
absolute necessity at times, and can also be very complex,
expensive, and consume time, energy, and resources.
 
International workplace investigations are even more complex,
and require greater expertise, by the added complexities of crossing
and the integration of various language, business, legal, geographic boundaries, as well as the specific cultural norms and conduct.
    
Inexperienced or inadequately trained internal managers selected
to be impartial investigators, may soon find themselves overwhelmed and ill prepared in complex regulatory, ethical, or criminal matters. Inexperienced investigators may tend to act on assumptions, rely on faulty belief systems, and incomplete facts, and often come to a conclusion prior to interviewing all of the witnesses, therefore, not hearing all of the evidence.
 
​Recent national and corporate events and cases that have garnered everyone's attention showcase the need and case law requires that employers prepare for and conduct investigations carefully, and conduct them very well, from the beginning. Serious allegations of employee or executive misconduct can have very costly and significant consequences, as has been observed and reported in these high profile cases. ​​

An impartial investigation process starts with the careful selection
of an investigator. Otherwise, the bias or the perception of bias of the investigator may cloud the findings of the investigation. For this
reason, employers should examine the possibility of any potential conflicts of interest before selecting an investigator, whether it is
to be an internal or external one.

Upon immediate awareness of a workplace issue, HR Advisory Group Ltd's executive investigation and legal team can advise employers if
a workplace investigation is warranted, and after determining if we
are the best match for your needs, we can customize a strategy specific
for your unique situation. 

There are situations where an internal investigation is advisable, but more often than not, an external advisor, strategist, and investigator
is frequently the best course of action for a multitude of reasons.

There are special considerations when conducting high level, high stake, executive investigations. Please contact us for assistance and guidance with these complex and high risk investigations.

    

    


Across the country, legal decision-makers are increasingly reviewing employers’ workplace investigation efforts and finding them deeply flawed. A flawed process is often at issue. Flawed processes lead to flawed results. A properly conducted workplace investigation can mean all the difference in protecting your organization from further loss or liability.
​​

Key reasons to hire an external investigator:

  • IMPARTIALITY. You may have a small company without a dedicated HR staff. You receive a complaint from an employee and have no idea how to deal with it or you may think you do know how to handle such a task after reading an article or two on the subject.

Perhaps you do have an HR department, and you have instructed that HR staff to handle all HR related tasks, including investigations. Your HR staff are a key part of your business; they interact with staff frequently
on a professional and often social level. A key aspect of their role is in developing and sustaining strong, long term, successful relationships with staff at all levels of the organization. Using an external investigator or team helps protect and preserve those critical relationships.Traditionally, HR duties involve participation and involvement in approving or denying promotional opportunities, overseeing the Performance Management and improvement process, overseeing the disciplinary action and termination process. Your HR employees, most likely attend holiday parties and other functions and events with the rest of your staff. They may travel together to conferences or training events. These events are frequently where harassment and other issues arise. Perhaps your HR staff observed or were told about some offensive, harassing behavior by one or more of your employees.

Your HR staff has just potentially become a witness in
your investigation.

In addition, HR staff may be directly or indirectly supervised, managed, or directed by the accused, making them reluctant
to investigate and may be fearful of losing their positions, as
we have observed in many recent high profile cases. HR should never be placed in the position of investigating someone they report to.

An independent, external investigator is always the right choice when the investigation involves high level executives. 
 
Do you see any room for conflict in these scenarios? 

Employers have an obligation and duty to use investigators that are trained, experienced, knowledgeable, and impartial. Using a qualified external investigator eliminates conflicts of interest, either real or perceived, from the process.  
 
It eliminates the added complication of workplace politics and mitigates claims of employer retaliation.

  • WHEN THE ALLEGATIONS ARE SERIOUS: THE STAKES ARE HIGH. When the allegations are serious, it is
  • more important than ever to select a qualified external investigator. The selection of an experienced, neutral investigator is critical for many reasons. Individuals are far more likely to be forthcoming and open with information when they feel the investigation is unbiased and impartially conducted by a neutral, external investigator.  Internal investigators are far more likely to be accused of bias than external ones. Anyone scrutinizing the investigation is far less likely to challenge the outcome when an external investigator is utilized. The more serious the allegation, the more aggressive scrutiny the investigation may come under by attorneys, courts, or arbitrators. The investigation process and strategy itself, will come under close legal scrutiny, as well as the participants. Flaws in the investigation process or procedure exposes the organization to legal liability.         A  well conducted investigation can save employers money, and on the other hand a flawed investigation can lead to disastrous and quite costly outcomes. 

External investigators, just as external business consultants, look at issues with a fresh set of eyes, with no preset or predetermined judgments or assessments and can make objective recommendations.

Internal investigators are often pressured, coerced, or intimidated, or perceive that they are, by management or even witnesses. Conversely, internal investigators often pressure or intimidate witnesses or management. Neither case makes for a fair, impartial, or valid investigation
    
Employees may ask for legal representation in these serious cases that have serious legal and personal ramifications. An organization's

reputation will also be at stake. A company with a poorly conducted investigation may risk imposed fines, legal judgments, possible loss of licensure, or plans of correction by regulatory agencies, as well as possible loss to their standing in the community and marketplace, which can be difficult, and sometimes even impossible, to regain.

  • LACK OF ADEQUATE TIME AND RESOURCES is a    recipe for an improperly conducted investigation. Most investigations require rapid action and response by the employer, while also affording flexibility. Evidence can be manipulated, lost or destroyed quickly, requiring fast and impartial action. In order to protect an organization, an employer needs to have the right time and resources to dedicate fully to a complete and comprehensive investigation.    This is a challenge for most employers today, who are operating   with tight budgets and streamlined staff, particularly streamlined   HR departments. Using an external investigator helps to minimize business disruption and helps maintain normal work operations and productivity. While rapid action is critical, it is even more critical to properly prepare for the investigation. This is another area in which having an external investigator can be extremely judicious, as it may have long range benefits.

  • ​​EXTERNAL INVESTIGATIONS INCREASE EMPLOYEE MORALE AND CONFIDENCE.​ Complaints of wrongdoing can seriously damage and undermine working relationships and the entire workplace morale. It may also damage a company's reputation in the community and marketplace which can be hard, and sometimes impossible to rebuild.

Employee trust and confidence is elevated, and employees are far more likely to report incidents and accept the outcome when they know the employer has taken the complaint seriously and acted in an objective manner by hiring an external investigator or team, without internal allegiances or conflicts of interest.

It also helps reduce lawsuits and employee complaints to outside regulatory agencies, when employees feel their complaints are handled ethically, properly and fairly, they are less likely to take their complaints outside the organization to an attorney

or regulatory agency.


    
    

OTHER BENEFITS INCLUDE:
 
The utilization of an external investigator or investigative team and process can also ensure greater confidentiality of the investigation, leading to more accurate and positive outcomes.
 
Using an external investigator allows the employer's regular legal counsel to avoid potential conflicts of being an advocate vs being a witness, and allows for the employer's regular attorney to represent the employer with any litigation issues that may arise from the investigation or its resulting employment actions.
 
​External investigators take employees, managers, and HR out of the investigation so that ongoing positive employee and management relationships can be maintained with less conflict or discomfort for all parties involved. ​
 
External investigators with proper training and experience are far more likely to apply the fundamental principles of Due Process and Procedural Fairness appropriately and consistently throughout the investigation.
 
Qualified external investigators provide expert, unbiased, factual, accurate and independent professional investigative reports so that employers can make more informed and accurate decisions, and are important evidence in the case of any litigation. One tiny mistake in a report can discredit the entire report.
 
​External investigators and consultants are able to assist a company resolve issues that arise during the course of the investigation by recommending or employing new strategies and solutions, due to their unbiased view, ​and their extensive experience working with multiple companies that have also faced similar issues. ​
Wise employers understand that investigations may be viewed and scrutinized by attorneys, arbitrators, and the court. Investigations are increasingly coming under court, attorney and arbitrator examination to scrutinize an employer's motive, method, and results of their investigations.
 
Plaintiff's attorneys will review an investigation as part of their decision making process and evaluation as to whether to accept a prospective case or not. One of the determining factors is to evaluate whether or not the investigations itself is further evidence of discrimination or retaliation by the employer.
 
Prudent employers understand this fact and select their investigators cautiously. They look for well-trained, unbiased investigators who have the time available to devote to a thorough, timely, and comprehensive investigation.
 
Often employers conduct internal investigations merely to support preconceived and faulty judgments. These situations can quickly turn very problematic and costly for employers.
A FEW COMMON RED FLAGS to a flawed investigation:
 
BIASED INVESTIGATORS: Using an investigator with any stake
in the outcome, or who has any kind of personal relationship with ANY
of the witnesses invites grave risk and allegations of favoritism and Conflicts of Interest to the organization. Bias can be conscious or unconscious(explicit or implicit), and can be learned implicitly within cultural contexts.
 
Everyone carries a variety of biases around with them on a daily basis.
Yet, many people are confident they can set their biases aside when it comes time to perform a workplace investigation, even referring to the
final product as an “unbiased investigation.” But science has repeatedly proven that individuals aren’t nearly as good at setting their biases aside
as they would like to think. Research also shows that individuals have
more implicit biases than they'd likely care to admit. These hidden biases can influence our actions and decision-making, compromising internal investigative work often with disastrous effects. Leaders need to be
aware of their own cognitive, behavioral, and motivational bias.

We also offer training that delves deeply into each type of bias, and how
it affects each individual's decision making, and how to overcome it. Bias affects our lives in many areas, but one of the most common is in our work life. One of the most predominant ways is through interviewing, both in investigative interviewing and in recruitment and hiring. Contact us for training on this fascinating, complex, and extremely relevant topic.
 
Awareness and acknowledgement of our biases can help dramatically in overcoming and even conquering them, and with awareness and training, individuals, HR, managers, and executives will make much better decisions in employment, hiring and investigative processes    

From the legal perspective, investigations conducted by a biased investigator may compromise an employer’s defense even more than no investigation at all because they convey a loud and clear message to the fact finder: the investigation was orchestrated
by the employer to justify a preordained decision.

Other issues in flawed investigations:
I NCOMPLETE, DELAYED, OR POSTPONED INVESTIGATIONS.
Failure by employers to give adequate time and attention to conduct a comprehensive and thorough investigation sends the message to the public and to their employees of their lack of interest in learning the truth and in dealing with complex and legal issues that affect their employees. ​​
 
ISSUES with CREDIBILITY ASSESSMENTS.
Knowledgable and well trained investigators recognize and understand that credibility assessments are critical as well as documentation how those assessments were determined.
 
FLAWED INVESTIGATIVE and INTERVIEWING TECHNIQUES. Witness statements that are virtually identical in significant respects may indicate that the investigator did not use neutral interrogation tactics.
 
FAILURE TO PRESERVE RECORDS/EVIDENCE.
May be perceived as further evidence of discrimination or retaliation; generally puts an employer in a negative light. Employers have a duty to preserve all evidence. Failure to do so can have serious and costly consequences.

Respecting employees’ due process rights serves the interests of more than the accused employees. Investigatory practices incorporating due process and procedural fairness principles
best serve the interests of employers and employees alike – by ensuring timely, thorough and unbiased investigations.
 
Fairness of the process will enhance the integrity, credibility and acceptance of the investigation as well as its results.​

SPECIALIZED TRAINING AND EXPERTISE. External Investigators should have specialized training and expertise in conducting workplace investigations. HR Advisory Group Ltd's investigative and legal team have professional, as well as educational backgrounds and advanced degrees in law, psychology, human resources, compliance, business, and safety and have over 20 years of workplace investigative experience, in various industries, as well as extensive training, professional commendations, and have literally conducted hundreds of workplace investigations.

   
DISCLAIMER:The information shared on this website is for informational purposes only, and should not be construed as specific legal advice on any subject matter. Each situation is unique with particular facts and circumstances. Legal advice is highly dependent on the particular facts and circumstances at issue and individuals should obtain it from an attorney with applicable experience in the subject matter and licensed in their particular state.
 
    
    


    
    




    
 
    
 
    


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