Workplace Investigations: When Should You Consider Retaining an Outside Investigator
Increasingly, organizations are conducting workplace investigations in response to employee concerns – both those raised formally to human resources or through a written complaint or attorney demand letter, and those raised informally in a conversation with a supervisor that is brought to human resources’ or an equivalent function’s attention.
Matters that, in the past, might have been handled by a conversation with the subject of the complaint and perhaps one or both parties’ managers are now referred for an investigation. That typically comprises documented interviews with both parties and others believed to have relevant information, as well as a review of other materials, including documents, electronic communications, recordings, and physical items.
Human Resources is most typically tasked with conducting these types of investigations. In organizations with a larger HR function, there may be a dedicated employee relations function or equal employment opportunity (EEO) office to handle the investigation of matters potentially involving serious policy violations, such as the EEO or workplace violence policies. Complaints about workplace conditions (not involving health or safety concerns) or more generalized issues of unfairness or favoritism (not based on any protected characteristic) are often looked into by the HR generalist supporting that business function.
Sometimes, though, an organization is best served by retaining someone outside the organization to investigate a workplace concern. In my 27 years conducting workplace investigations, I have found that determining when to retain an outside investigator largely depends on four factors: conflicts of interest, sensitivity of the issue, skills and experience, and workload management.
Conflicts of Interest
CEOs/business owners, board chairs and other senior leaders can be the subject of an employee complaint reflecting a potential serious policy violation. Or a workplace concern may involve the head of the organization’s human resources, compliance or legal function. In each of those circumstances, the individuals within the organization who would typically be conducting a workplace investigation are being asked to look into a complaint against the people who ultimately determine the investigator’s pay and future with the organization. The internal investigator’s independence and ability to conduct an effective investigation may be compromised in that situation.
Even if the internal investigator feels equipped to disregard the underlying power dynamics and objectively gather and evaluate the factual information, there is an overriding appearance of undue influence that may undermine the confidence of the complainant or other parties in the objectivity of the outcome. The complainant may raise concerns about the process to coworkers, and employees may be disinclined to raise concerns internally in the future.
An outside investigator can help an organization avoid these conflict-of-interest concerns. The outside investigator may be retained by and asked to report directly to the board, outside legal counsel, or a senior leader within the organization who is above or outside the reporting lines of the parties involved in the matter (such as reporting to the CEO or CFO on a matter involving department heads within human resources or legal).
Sensitivity of the Issue
Sometimes the nature of the concern raised warrants retaining an outside investigator. For example, matters involving a sexual assault or a domestic violence issue that has carried into the workplace may present particular sensitivities that the internal investigations team is not experienced to handle. A trauma-informed approach is recommended for investigating these types of matters, which involves a focus on open-ended questions, delicate probing, and an appreciation that the complainant’s account may be fragmented or disjointed but still credible. These attributes of a trauma-informed approach are arguably best practices for any workplace investigation, but if the internal team lacks appropriate training in them, then an outside investigator may be a better option to conduct an appropriate investigation.
Skills and Experience
Smaller organizations often do not have an internal human resources function. HR support may be provided through a professional employer organization (PEO) or may be assigned to the business owner, the head of operations or the finance head. Or perhaps an organization does have one or more internal people responsible for human resources, but their role and experience has primarily focused on recruiting, benefits administration or HR advisory work, with little or no experience conducting workplace investigations. In these situations, leveraging the skills and experience of an outside investigator is helpful. Some organizations will retain an outside investigator for support on an ongoing, as-needed basis, while others may retain an outside investigator more ad hoc, if a concern has been raised where an investigation seems appropriate.
Finally, sometimes an internal HR or investigations team just has too much on its plate or is short one or more staff and needs additional resources on an interim basis. In these situations, the outside investigator still offers the benefit of more independent accountability and perspective, but primarily the investigator’s value is in being able to “hit the ground running” and offer support.
An experienced outside investigator can be a helpful resource to organizations in a range of situations. It is helpful to articulate to the investigator at the outset the business issue that prompted reaching out to someone external to the organization. If, for example, an outside investigator is being retained due to a conflict of interest, then clarifying to whom the investigator will be reporting is important to ensure there is no perpetuation of the conflict. And if the investigator is simply an extra set of hands to manage workload, then it is important to clarify when and how the investigator will be engaged for specific matters.
As always, should you have questions or concerns about this, or any other HR related issues, please feel free to reach out to one of our experienced and dedicated consultants at: firstname.lastname@example.org.
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