The Morning Show: Workplace Investigations
The Morning Show is a ripped-from-the-headlines drama series about Mitch Kessler, a beloved TV anchor, who is fired for sexual misconduct during the MeToo movement. He’s basically Matt Lauer. As a workplace investigator, I was all in. How would the show portray our line of work? Inaccurately, it turns out!
When The Morning Show starts, we learn that Kessler was suddenly fired after the network’s Human Resources department conducted an internal investigation into allegations of sexual misconduct. Companies usually don’t have their internal Human Resources departments perform investigations of high-profile employees. This is due to the perception that Human Resources is impartial because their career or company’s success may depend on the outcome of the investigation. That’s why companies usually choose to engage external investigators to handle high-profile investigations. Furthermore, in high-profile investigations, bad news may be imminent for the company. For legal and practical reasons, companies are better off hiring a disinterested external proverbial messenger to assemble and break the news.
A few episodes into The Morning Show, we learn the network has engaged an external investigator to conduct another investigation into sexual misconduct by Kessler. It is not unheard of for something to be looked into by internal investigators and external investigators, and there may be good reasons for doing so. However, having multiple investigations into the same or overlapping issues or events can be tricky. What happens if the two investigations yield different results? To be on the safe side, it’s best to seek legal advice before embarking on a second investigation.
The external investigator hired by The Morning Show, Vicky Manderly from Stern & Young, shows up—with many red flags. First off, Manderly holds a group meeting with what appears to be the entire staff of The Morning Show to introduce herself. Investigators do not typically announce their presence and give speeches to employees. Workplace investigators usually meet with employees one on one to introduce themselves, explain the investigatory process, and establish rapport. Operating with discretion is critical to establishing trust with witnesses, so they feel comfortable enough to open up to the investigator. Moreover, Manderly’s meeting was disruptive to the workplace, as all employees had to stop performing their jobs to listen to her speech. In contrast, workplace investigators should strive to gather relevant information in as minimally disruptive a fashion as possible.
Manderly has one-on-one meetings with employees, but promises them complete confidentiality, which raises another red flag. Manderly tells a witness, “I don’t want you to feel scared or anxious about any of this, okay? We’re just talking. It is all confidential. You are safe.” What Manderly failed to explain is that “confidential” doesn’t mean top secret. It just means the employee’s statements won’t be shared unless someone has a need to know. If the employee gives critical information, it’s need-to-know information. Workplace investigators cannot promise witnesses complete confidentiality. Similarly, workplace investigators cannot guarantee any employee is “safe.” Manderly does a disservice by suggesting otherwise. In real life, workplace investigators explain to the employee what “confidential” means, and what to do if they fear retaliation for participating in the investigation.
Manderly appears biased against Kessler, which is hugely problematic for a workplace investigator. In explaining the purpose of her investigation, Manderly says, “I’m only here to try and understand the culture at The Morning Show that allowed Mitch Kessler’s inappropriate behavior to go unchecked, so we can work together to make this a safe, highly functioning workplace for everyone.” It sounds like Manderly already has her mind made up about Kessler. Investigators must appear and in fact be unbiased. Investigators are typically hired to figure out if “inappropriate behavior” occurred and the circumstances under which that behavior took place. By starting the investigation with the mindset that Kessler engaged in inappropriate behavior, Manderly very well may overlook exculpatory evidence or other evidence that might help her more fully understand the culture at The Morning Show.
Finally, Manderly crosses professional boundaries in her client communications. In a clandestine phone call, Manderly assures a network higher-up, “You’re safe. Nobody’s implicated the show or the network yet. Just Mitch.” That type of communication is inappropriate from an impartial fact-finder. It’s fine to provide the client with high-level updates about the investigation. However, Manderly is too concerned with her client’s legal positioning and how the outcome of her investigation will impact her client. That’s the job of the attorneys who provide advice and counsel to the client—not the neutral investigator. Investigators are retained for the limited purpose of gathering facts and making findings—regardless of the outcome.
Workplace investigators are retained to be neutral. We gather evidence, weigh it, and make factual conclusions. While The Morning Show’s depiction of a workplace investigation may be entertaining, it’s not reality.
