“The phone rings and before you finish saying ‘hello,’ the chief compliance officer of a Fortune 20 client is quickly relaying to you that an accounting manager has just filed an internal complaint of sexual harassment against the chief financial officer (CFO). In addition to the harassment charge (which includes transcripts of voicemails of the CFO making lewd and suggestive comments), the manager also accuses the CFO of filing false expense reports. As if that isn’t enough, the manager also alleges that in-house counsel, the CFO and one board member instructed her not to provide current information regarding certain transactions to the outside accountants during a recent audit. You send off the engagement letter, sit back and wonder where in the world to begin.” ~ Allison West, Esq., SHRM-SCP, SPHR, AWI-CH
Workplace investigations come in all shapes and sizes and can involve topics ranging from harassment and discrimination to substance abuse and workplace safety. While investigations may differ, the standards for conducting an investigation should by applied consistently.
Investigations should be handled promptly and thoroughly, follow all state and federal laws, and be focused on giving both the complainant and the subject of the complaint the opportunity to give their version of the facts.
Investigators must be credible, impartial and knowledgeable about organizational policies and employment law, and should carefully manage the process to protect both the privacy of employees and the integrity of the investigation.
While the testimony of the complainant and the alleged wrongdoer is critical, the investigator will also interview witnesses who have first-hand knowledge of the issues or complaint.
The investigator may also find valuable information from witnesses who heard something second- or third-hand, which is often referred to as hearsay evidence. In her blog post, Three Reasons Why Investigators Should Not Discount Hearsay Evidence, attorney and workplace investigation expert Allison West says that “hearsay evidence is not always unreliable; hearsay statements or evidence can lead investigators to relevant evidence; and ignoring hearsay evidence puts the investigator’s credibility at risk.”
And what if the alleged wrongdoing is a senior leader or in the C-suite? In the blog post You Want Me to Investigate Who? — The Challenges of High-Level Investigations, West says, “the reality is that conducting a high-level investigation adds a level of complexity. The alleged wrongdoers have, by virtue of their positions, considerable power. In high-profile investigations, the employer must be prepared for some additional, unique challenges that may arise: timeliness, possible compromised evidence, public relations issues, attorney involvement, communication flow, and privilege issues. The employer must make decisions about issues such as protecting the complainant and witnesses, keeping the alleged wrongdoer in place (or on leave), appointing someone to supervise the investigation, and the role and involvement of the board of directors.”
Fear of Retaliation
Oftentimes, employees avoid cooperating in an investigation out of fear of retaliation. West says that “Not surprisingly, many witnesses in this situation may shut down or refuse to participate in the investigation for fear of retaliation, not just from the alleged wrongdoer, but possibly from a boss, co-workers, or outsiders. When the alleged wrongdoer is a high-level professional, the fear of retaliation is actually deeper and often more widespread than in a typical mid-level investigation. The fear is rational and cannot be discounted.”
Regardless of who is being investigated, workplace investigations—when properly conducted—help to determine whether a complaint has any merit and should deliver fair outcomes for all employees involved.
Please join @shrmnextchat at 3 p.m. ET on September 27 for #Nextchat with special guest Allison West, Esq., SHRM-SCP, SPHR, AWI-CH (@allisonwestesq). We’ll chat about how to conduct a thorough and effective workplace investigation.
Q1. What are some of the key differences in handling a workplace sexual harassment investigation versus investigations based on other protected characteristics?
Q2. What are the key issues to consider when conducting a high-level workplace investigation (vice president and above)?
Q3. What are some of the things workplace investigators should consider when figuring out which witnesses to interview?
Q4. How do you balance confidentiality with the restrictions imposed by the National Labor Relations Board when conducting a workplace investigation?
Q5. What are some of the challenges for HR when investigating workplace bullying?
Q6. What are the most common investigator mistakes in workplace investigations?
Q7. What can investigators do if, when conducting a workplace investigation, they suspect a witness is not being truthful?
Q8. What are the pros and cons of recording workplace investigation interviews?