Easy Fixes To Flawed Investigations

One of my colleagues and I were comparing cases last week and realized that all of our litigation files have a significant common element (aside from the fact that they involve employment claims): each one involves an investigation. Neither of us was particularly surprised by this, as in recent years when employers are confronted with allegations of violation of law or policy, their initial response is often to investigate. Also, when our clients seek our advice, we generally lay out a similar multi-step approach, whereby we

• look into an allegation,
• determine if there was any wrongdoing or violation,
• take corrective and remedial action if warranted,
• decide whether proactive measures are necessary and can effectively prevent future violations,
• and, if so, implement those measures.

As litigators, we employ that course of action as a first line of defense to a harassment claim or a wrongful termination suit and generally place a lot of weight on the very fact of the investigation. As counselors, we advise that conducting an appropriate investigation and acting on conclusions, in addition to providing legal benefits, is just good business – a company that addresses internal concerns encourages employees to come forward; improves morale; increases the likelihood of identifying and resolving problems internally; and limits the impact of noncompliant conduct on the business of the company itself. But we also invariably warn our clients that the failure to properly investigate can be used just as harshly against employers as the failure to investigate itself, and that a poor investigation impacts the company’s business goals. That is, even the best intentions can backfire.

With investigations being the “new norm” and in the face of compelling reasons to address internal allegations of wrongdoing, why, then, is the most crucial element – the fact finding investigation itself – so frequently where the process begins to unravel?

The case law, plaintiffs’ counsel and my own experience all reveal that the most commonplace issues are in the control of the company and the investigator. This means that they can be avoided. The list below is a non-exhaustive overview, and while some of the items seem to simply rely on the application of common sense, not one is a fictitious example.

1. The wrong people are conducting investigations. Some of the caveats to choosing an investigator seem self-evident, but when plaintiffs’ counsel attack investigations, they usually start with the investigator herself:

• The person investigating is not in fact an investigator. As a preliminary issue, it is quite clear that “investigate” does not mean the same thing to everyone. Over years of management-side depositions I have heard many witnesses asked whether they “investigated” an issue or complaint. Often they respond that they, of course, did. What they mean, though, is that they got information from a complaining employee or learned about an apparent misconduct issue, applied their own knowledge to the situation, perhaps looked at some emails or documents and maybe even talked to a few people. And then they reached a conclusion. What most witnesses rarely mean, though, is that they conducted a methodical and thorough inquiry. That job should be reserved for actual investigators and is not necessarily the domain of individual employees who are the recipients of a complaint or who learn of an issue. When a company intends to actually investigate, and when it intends to reap the benefits – from both a legal and a business perspective – of such an endeavor, the person holding himself out as having “investigated” should be the person actually charged with that job.
• The investigator is in a conflict or biased position. Is there any chance she appears anything but neutral? Once your fact-finding is complete, and even if your investigator does an otherwise thorough job, your entire investigation is subject to challenge if your fact finder is biased or conflicted. When using internal investigators, consider issues like chain of command (this may seem obvious, but in smaller companies where upper management reports to the president, any one of those individuals investigating the president or each other could be considered a conflict or tainted by bias), compensation decisions and daily interaction. When hiring an outside investigator, consider whether that person has been used by your company previously and, if so, what the outcome was. Even a neutral outsider becomes less so when she is a “hired gun.” And while personal knowledge of witnesses and/or their reputations might sound like it would be useful, this knowledge invariably leads investigators to make conclusions about credibility that an outsider might not make. Even if the investigator’s conclusions are supported by the evidence, a biased or conflicted investigator will lead a jury to believe the result was unfair and inadequate.
• The investigator does not have, and fails to acquire, subject matter knowledge. Not every investigation involves simply asking witnesses what they saw or heard; thus, even a person trained in investigating might not be the right person when a technical issue is involved. For example, if a relevant fact involves a medical test, and your investigator will not be able to decipher one test from another, he may not understand what the fact witnesses are telling him. At the least, if your investigator is otherwise the right person but does not understand your business, give him immediate and continuous access to someone (a person not involved in the investigation, either from a chain-of-command or witness perspective) who does. You also can hire a subject matter expert.
• The investigator does not have immediate time to begin, conduct or complete the investigation or finalize her report. We address timing again below, but with the goal of addressing concerns and complaints; remedying problems; and limiting the business and legal impact of noncompliance, the availability, responsiveness and follow-through of the investigator is essential. If your otherwise optimal choice has a timing issue, you should probably move to the next person on your list.
• The investigator cannot get witnesses to talk. Often my clients will tell me that their fact witness employees will not be receptive to certain potential investigators, whether because of personality, age, race, gender or other characteristics, and that they believe that certain qualities will help elicit information. Unless your client appears not to know and understand his work force, this perspective is important. Your investigator must be someone who can gain the trust of the complaining employee, the alleged bad actor and the list of witnesses.
• The investigator is not experienced. Everyone has a first investigation, but it should not be a solo run. A novice investigator will make mistakes, which could lead to an inadequate investigation. At a minimum, if an investigation is in-house and being conducted by a first-timer, have someone else oversee it. And it goes without saying (but I will say it anyway), make sure your external investigator has experience investigating.

2. The investigation is not thorough. While of course investigators should conduct their interviews, review documents and other materials and write their reports in a timely and efficient way, there are times when investigators sacrifice speed for completeness. When steps are skipped, whether in the interest of time or for other reasons, such as business pressure, the conclusion is more readily challenged. A few examples of the kinds of questions I have heard (or asked) recently about investigation summaries include:

• Did you look at any documents about … ? While some documents are readily available, like policies and personnel files, investigators might also need to obtain emails, IMs, texts, prior complaints and human resources data. Technical and business-specific materials may also be necessary. And, speaking of things to look at, a tour of the workplace might also help. Allow your investigator the opportunity to review anything he thinks is needed, and if you notice that he is not asking for documents or information you believe would be useful, offer them.
• Why didn’t you talk to …? As a basic premise, your investigator should have access to the people she thinks are important. By the end of the investigation, she must be able to confirm that she talked to all the people she thought had relevant information. So, a company’s desire to not “bother” more people than necessary or usurp the time of high-level executives could result in a challenge to the thoroughness of the investigation. Also, an investigator should have the ability to speak with witnesses more than once. It is her job to circle back, closing leads as new information is revealed.
• Did you consider…? Let your investigator follow the path, no matter where it leads. Frequently, we start an investigation based on a specific claim, such as sex harassment. Once we hear that an alleged bad actor treats both genders in the same fashion, the natural and obvious conclusion is that sex harassment is not occurring. But perhaps something equally problematic in the workplace, such as bullying or violence, is occurring, and the employer should remediate that. When an investigation report identifies and pursues issues that arose during the course of the investigation, the investigation appears thorough.
• Did you ask…? The investigator has to ask the hard questions and elicit the full story, as it actually played out. She cannot permit a witness to simply summarize an event and must ask for details and descriptions, no matter how graphic. The facts cannot be truly examined if a “G-rated” version is acceptable. For example, few people actually say “f***.” Similarly, the report should contain quotes and should not defer to euphemisms. To be reliable and support the conclusion, the details are essential.

3. The investigation takes too long. Again, balancing thoroughness with speed is not a science, but we all know that the courts have held that timing is important. Certainly, delay in commencing an investigation and the amount of time elapsed between the first complaint and remedial action may be deemed to be acquiescence to a hostile work environment. And short-term memory evaporates after time, so accurate information is best obtained near in time to an event or incident. Perhaps more importantly, employees hang in the balance while an investigation is ongoing. For example, pending the outcome of an investigation, employees may be placed on administrative leave or delayed from applying for promotional positions or transfers, or work processes may be modified to maintain distance between employees – but all the while, the business of the business must still march on. Precious time is often lost waiting for an investigator to reduce his report and fact-finding to writing.

4. The company does not follow through. Clearly, this is not a flaw in the investigation itself, but when a company fails to act on results of an investigation, it raises two questions (at a minimum): Did the company not believe the investigator’s conclusions or find them faulty? And did the company make a conscious decision not to discipline or remediate as warranted? Most of my employer clients conduct an investigation to get to the bottom of an issue, rather than simply go through the motions: a better workplace will not happen without addressing workplace concerns.

Certainly, the route for reaching a conclusion as to whether wrongdoing or a policy violation occurred differs from issue to issue. And even flawed investigations can yield accurate conclusions, but given the regularity with which companies are conducting investigations and the legal and business impacts of the outcomes, taking the extra steps to avoid flaws is well worth the effort.