Choosing the Right Investigator
You are the head of Human Resources and you receive a complaint of sexual harassment from an employee. To whom do you assign the investigation? Do you handle it in-house or bring in an external investigator? Your answers to these questions set the tone for the entire investigation. Choosing the right investigator from the start can help save hundreds of thousands of dollars in litigation costs to defend the adequacy of the investigation in later stages.[1] Accordingly, it is a question which deserves consideration.
According to the Association of Workplace Investigators (AWI) Guiding Principles, when it comes to choosing an investigator, “The investigator should be impartial, objective, and possess the necessary skills and time to conduct the investigation.”[2] With this in mind, you should consider the following when assigning your next investigation:
Impartiality. Does the investigator create a perception of impartiality? Regardless of whether or not the investigator is, in fact, impartial, the appearance of partiality or bias can greatly undermine the credibility (and overall adequacy) of the investigation.
For example, imagine a complaint was made against your direct supervisor. Amazing as you are at your job as Head of Human Resources, this nevertheless creates the perception of partiality. Your integrity aside, the fact remains that your supervisor has the power to greatly influence your career, whether it be promoting, disciplining, or even firing you. Thus, any findings you make in this particular investigation will be scrutinized under the lens of, “How much were they trying to save their own job?”
Alternatively, imagine the complaint involved two employees in a completely separate department. Assuming you do not have a personal relationship with these persons, that you have seemingly little to no interaction or connection with them puts you in a much better position to appear unbiased and impartial.
Not only is the appearance of impartiality important in determining the adequacy of an investigation, but it is also important to note that witnesses are less likely to be open and candid — or even participate in the investigation — if they believe it is skewed from the start.
Objectivity. Similar to above, the investigator must not only appear impartial and objective; they must actually be impartial and objective. In other words, the investigator must not have an interest in the outcome. If the investigator is best friends with one of the parties, or if the complaint is against the top sales employee who generates the highest revenue for the company, you may be better served by assigning a different investigator or bringing in a third-party investigator.
That said, as noted by the AWI Guiding Principles, “An outside attorney investigator conducting an impartial investigation should appreciate the distinction between the role of impartial investigator and that of advocate.” An attorney retained for the purpose of providing legal counsel and representation in current or future litigation necessarily cannot serve as an impartial investigator — their role is intended to defend the interests of the employer.
Skill. When it comes to “necessary skills,” this can mean a lot of things, ranging from legal requirements to experience and capabilities.
First, is the investigator legally qualified to conduct an investigation? In the state of California, only certain individuals are legally able to conduct a workplace investigation. These include persons employed “exclusively and regularly” by the employer (e.g., Human Resources professionals employed by the company); a licensed attorney “performing his or her duties as an attorney at law”; or a licensed private investigator.[3] It is imperative you choose a qualified investigator in order to ensure the legality of the investigation.
Second, does the investigator have the requisite expertise to conduct the investigation? While this is not a legal requirement, it nevertheless warrants consideration. An investigator needs to handle complex and sensitive cases which require skills in handling witnesses, assessing credibility, and analyzing often nebulous evidence. Just as you would not assign an investigation to an administrative assistant or accountant who has no knowledge or training in conducting an investigation, you also should not engage an attorney who is not familiar with workplace investigations. This, too, affects the overall adequacy of the investigation.
You may be asking — how does one gain the necessary experience? Even seasoned investigators had their first investigation at some point. Great question. In addition to ensuring adequate training (consider AWI’s week-long Institute), new investigators can work closely with more experienced investigators through a shadowing process.
Timeliness. Finally, as noted by the Society for Human Resources Management (SHRM), employers have a legal obligation to investigate complaints in a timely manner.[4] In the eyes of the law, “I was really busy” is not an acceptable excuse for not promptly responding to a complaint of harassment, discrimination, retaliation, or other workplace matters. Be sure to assign the investigation to an investigator who has the time and capacity to handle the matter in a timely fashion. If the entire Human Resources Department is inundated with complaints, it may be helpful — or necessary — to bring in a third-party investigator.
Overall, being mindful of these factors will lead to better investigative results and decrease the likelihood that your process will be undermined in the future.
Linh L. Luong is an Associate Attorney with Van Dermyden Maddux Law Corporation. Her practice focuses on conducting workplace and Title IX campus investigations.
[1] According to a 2017 report by specialty insurance company Hiscox, the average cost of employee lawsuits for small- to medium-sized enterprises with fewer than 500 employees was $160,000. See https://www.hiscox.com/documents/2017-Hiscox-Guide-to-Employee-Lawsuits.pdf.
[2] https://cdn.ymaws.com/www.awi.org/resource/resmgr/files/Publications/Guiding_Principles_.pdf
[3] See generally California Business and Professions Code §§ 7520 et seq.
The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.
