“We Investigated Ourselves and Found We Did Nothing Wrong!”– A Former Plaintiff’s Counsel’s Perspective on Internal Investigators
Whenever an employer is on notice of an employee concern that warrants an investigation, the next decision, invariably, is whether to perform the investigation in house or hire an outside investigator. In most situations, it is prudent, and even preferred, to use a qualified internal investigator. This article, however, will examine some of the obvious—and not-so-obvious—issues an employer should consider before making that decision, and how a plaintiff’s attorney may try to capitalize on those issues.
The first obvious issue internal investigators face is the appearance of bias. The internal investigator relies upon their employer to pay their salary so they can afford their mortgage and feed their kids. During my time as a plaintiff’s employment attorney, we would attempt to exploit this relationship. For example, we would ask investigators about their pay and promotion history for the time period surrounding the investigation. While privacy protects the amount of any pay increase, it does not shroud whether one occurred. Even if the investigator received a completely innocent raise or promotion before, during, or after the investigation, a plaintiff’s attorney can put the company on the defensive, attempting to justify a potentially innocuous raise or promotion.
Another challenge to an internal investigator is one that is also seemingly a benefit—internal investigators have insight into the business and its culture. An experienced plaintiff’s attorney will likely ask the investigator about all of their prior knowledge about the parties and what steps the investigator took after learning of the complaint. A well-known Human Resources website advises that the internal investigator should promptly review the employee’s file after reading the complaint, noting that an employee with a “checkered history is good news for the company.”[1] During my time as plaintiff’s counsel, I observed this occur routinely—internal investigators were “looking for dirt” in the personnel file. (By the way, if you are taking the time to read this, I am confident you were not one of the offenders.) Employers should take into account that this practice opens the door for a plaintiff’s attorney to argue that the investigator reviewing the negative information in the file—before conducting any interviews—tainted the entire investigation.
Plaintiff’s attorneys also seize on what we refer to as “authority bias,” which has significant implications in this context. Early on, we learn to trust authority figures, like parents or teachers, because we find that taking their advice proves beneficial—partly due to their greater wisdom, and partly because they control our rewards and punishments. As adults, the same motivations persist for the same reasons. Numerous studies highlight the power that authority bias still has over our decision-making. This bias is obviously apparent when a witness in an investigation is the President of the company. If the President says it, it must be true. The bias may also apply whenever an investigator encounters a witness at a perceived level of authority. When I worked as a plaintiff’s attorney, we would always seek to establish that the respondent had some sort of authority, status, or influence over the investigator, even if it was only a title. One could argue that an outside investigator is not immune to authority bias, and they would be correct. However, an employer should appreciate that the likelihood that a trained, third-party investigator would succumb to authority bias is undoubtedly reduced when compared to the internal investigator.
Next, there is affinity bias. This can come into play even in investigations involving employees of the same or similar level. Affinity bias is an unconscious bias that causes people to trust, or have a more favorable opinion of, someone with similar characteristics to themselves, such as a shared employer, role, or department. While this may not be as much of an issue in large organizations, the United States Census Bureau tells us that businesses with fewer than 100 workers account for 98% of all businesses and employ over 32% of the workforce. Employers should consider that the opportunity to develop affinity bias in these smaller environments is much higher. In addition, it is not unusual for an investigation to include a witness from Human Resources, thus engendering further affinity bias from a colleague conducting the investigation. On the plaintiff’s side, we would capitalize on this by establishing that the investigator identifies as a member of the witness’ team or department in an effort to discredit the investigator’s neutrality.
Consider this real-life example of authority and affinity bias. During a deposition in which we were cross-examining the internal investigator (let’s call her Maggie) in a sexual harassment case, we established that the two main parties—Complainant and Respondent—told completely different stories during the investigation. We then asked Maggie which party she believed. Maggie testified that she believed the respondent. When asked why, Maggie replied that it was because he was the Chief Executive Officer, whom she had known for many years, while the complainant was a new employee. It was an honest answer, and from where I sat then, we could not have hoped for a better one. While Maggie’s bias was apparent in this case, we should not underestimate the reality of more subtle forms of authority and affinity bias in an investigation where one party has any perceived or real authority over, or affinity to, the investigator.
Opting for an internal investigator is prudent in many, if not most, investigations. We recommend, however, that employers consider whether any of the above challenges may exist, and how a plaintiff’s attorney may ultimately attack their decision.
