Top Five Similarities and Differences Between Internal and External Investigators: Just the Same, but Different
At VM, we know workplace investigations. It’s what we do, every day. But we are always retained as external attorney investigators. Conducting an independent investigation as an external attorney investigator can be quite different from conducting an investigation as an internal human resources or compliance professional.
We regularly train investigation teams on how to conduct effective internal investigations and we have learned a lot about the differences and similarities in how internal teams approach this work. If you have been internal or worked with internal investigators, you know there can be some striking differences. This reality raises an important question. If there are such striking differences, how do investigators ensure their investigations meet commonly accepted industry standards and thrive under scrutiny from future legal challenges?
The reality is many of the principles for conducting a prompt, thorough, impartial investigation remain the same, even if they look a little different in execution for internal investigators. Let’s explore 5 common principles and 5 key differences.
Top Five Common Principles
Impartiality
A key purpose of any investigation is to make impartial factual findings that allow an employer to make reasoned employment decisions. For internal investigators to be effective, for employers to fulfill their legal obligation to identify and eliminate unlawful harassment, discrimination, or retaliation, an investigator, internal or external, must be given the leeway to be neutral. While some criticize the investigations field as always motivated by the perceived interests of an employer, the reality is that employers want to know the facts so they can make good employment decisions. Doing so facilitates healthy workplaces and mitigates legal risk, all of which improves productivity.
Thoroughness
As with impartiality, internal investigators must ensure their work is thorough. Given the many pressures internal investigators face, including heavy caseloads and obligations to perform other roles, carving out the time to conduct a truly thorough investigation can be challenging. However, as with impartiality, this factor is not negotiable. The investigation will not be useful as a tool to make informed employment decisions if it is not conducted with thoroughness in mind.
Methodology
Every investigator, including internal investigators, is best served by following a consistent and well-documented approach to the investigation process. This involves establishing a clear scope, even as it expands, gathering relevant information, analyzing the reliability and weight of evidence, and making clear findings. An essential element is taking active steps to understand and mitigate investigator bias. While the methodology may not be detailed in a report, the internal investigator’s file should reflect a clear and consistent methodology
Clear Findings Supported by Analysis
As noted above, reports often look different between internal and external investigators. However, an investigator cannot reach well-reasoned findings without engaging in a thoughtful analytical process that prioritizes weighing the reliability of evidence, evaluating witness credibility, and articulating clear factual findings. Whether the findings are documented in a lengthy narrative or summarized in a bullet pointed list in a case management system, every investigation should end with clear findings supported by analysis.
Subject to Scrutiny
We often note that in any investigation, we know at least someone is going to be unhappy with our findings. That is equally true for internal investigators. Every investigation has a list of potential stakeholders who will have reason to scrutinize the process and findings. It may be internal stakeholders and decision-makers, disgruntled parties, a plaintiff’s attorney, or even a future judge or jury. For this reason alone, following a consistent, impartial, thorough, and well-documented process is critical.
Top Five Differences
Defining Scope
As external investigators, we rely on our client stakeholder to define the scope. Our view is the client defines the scope, but we retain full responsibility and independence in how we conduct the investigation. Internal investigators, however, are often responsible for defining the scope themselves. Further, where external investigators are careful to minimize scope creep, internal investigators are often charged with pursuing the scope to its natural ending to ensure a complete and thorough inquiry into workplace conditions.
Interviews
All investigators try to scale interviews to be thorough, but not longer than necessary. However, in our experience, internal investigators strive for shorter interviews, often in the 30-minute range. Part of the reason for this is internal investigators already have a lot of the background knowledge that external investigators must learn early in the investigation. This means internal investigators may be less likely to start with broad, open-ended questions, or use a “funnel” method to questioning. Rather, they may be more likely to get straight to the point. That approach works, so long as the investigator is careful to ask detailed follow-up and contextual questions.
Document Review
Internal investigators have more seamless access to documents and a more comprehensive understanding of what is available. While external investigators generally receive anything they request, they may have to work harder to understand the full universe of relevant materials. Further, we find that internal investigators are more likely to review personnel records as a matter of course to learn about the parties involved. Of course, it is important to ensure any superfluous information does not unduly impact an investigator’s bias. Being thorough and analytical is the best antidote.
Reports
While we strive as external investigators to produce reports on the shorter side, they still often are much longer than the documentation internal investigators complete. Increasingly, internal investigation teams are using case management systems to document their investigations. The system can capture information about the complaint, serve as a repository for documents and witness notes, and contain a dedicated space for making findings and recommendations. We often emphasize that internal investigators should view their entire file as “the report.” This is key, since it is less common to produce a comprehensive report detailing methodology, summarizing evidence, and outlining detailed analysis and findings.
Recommendations
External investigators rarely make recommendations after completing an investigation. Doing so too often blurs the line between impartial fact-finder and legal adviser. Internal investigators, however, routinely provide recommendations following their investigation. There are practical reasons for this. For example, often an internal investigator wears several human resources hats, from employee relations to independent workplace investigator.
Ultimately, internal and external investigators have more in common than not. We are all charged with the heavy responsibility of treating a complaint with respect by:
Defining a clear scope,
Following a clear and consistent process,
Gathering material evidence,
Making clear findings supported by balanced analysis, and
Documenting the process and the findings
The field of workplace investigations is unique in the areas of human resources and employment law. Conducting effective investigations requires sophisticated skills. Too often, human resources and employment law professionals believe their knowledge alone equips them to conduct investigations. We encourage professionals new to the field of investigations to pursue specialized training so they can conduct investigations that withstand scrutiny and support good employment decisions.
