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Workplace Scandals: Will Your Company Be Next?

10 tips for conducting an effective investigation that protects the rights of victims, the accused and the company.

By guest blogger Ashley Norgard, attorney at Husch Blackwell LLP

Dec 11 2017 at 10:58 a.m.

Sexual harassment allegations and high-profile firings are making media headlines almost daily. What’s the likelihood that your company will be next? As organizational leaders, you and your team drafted a rigorous set of policies and implemented online and in-person anti-harassment training. You put thought and resources into creating a high-performing and empathetic culture. You made strong statements at company gatherings that harassment, discrimination and retaliation are not tolerated. 

That’s all great! But have you prepared in advance for the most crucial aspect of handling a workplace scandal—the internal investigation? 

You care about your employees, so are you doing everything you can to protect them? Companies typically think of the big three elements of an ethical workplace as culture, policies and training. But when those three are insufficient (and unfortunately it happens), what’s your next step? A solid internal investigation is crucial, yet often overlooked. 

There are a variety of reasons why internal investigations are often the missing link. Sometimes the organization never gets a chance to investigate bad conduct because employees (both victims and bystanders) don’t complain. Employees are sometimes fearful that their concerns will be futile or rejected—especially if the accused person is powerful within the organization. Sometimes complaints are expressed informally and managers don’t have sufficient training to recognize the necessity of an investigation. Other times, an investigation is done, but executed so hastily or poorly that no investigation at all might have been a better option.

When done correctly, however, effective internal investigations protect the rights of victims, the accused and the company.

 

Why and When to Investigate

Despite the scary name, investigations are actually good for business. They promote loyalty and trust, minimize disruptions and convey the important message that misconduct is not tolerated. The hope is that an effective investigation will simultaneously address employee issues while also mitigating potential legal liability. Despite whatever underlying conduct or complaint prompted the investigation, the investigation itself can often be a company’s best defense or worst enemy. 

The type and breadth of an investigation depends on what’s being examined. It’s a common misconception that an employee must file a formal written complaint with HR in order to warrant an investigation. Wrong! Violations of policy, procedure, law, unfair treatment and misconduct can all warrant an investigation. Complaints may take various forms: specific or general, formal or informal. 

Television pundits croak “But why did the victims wait all of these years to come forward?” Chances are that someone (or many people) in the company knew, but because the accuser never made a formal complaint, the company didn’t investigate or take action. Sometimes an investigation will reveal that an accused person’s behavior had been “common knowledge” or an “open secret” for years. Waiting on a formal complaint only delays the inevitable and puts more potential victims at risk. 

Your company should be open to investigating all allegations of wrongdoing, no matter the form they take upon arrival. Complaints may come informally from the victim, tips from witnesses, customers or vendors, or more formally through a compliance hotline. If you have notice of a possible problem, you should consider investigating. 

At Husch Blackwell, we routinely conduct investigations for clients. Just like complaints vary in type and scope, internal investigations are all different. However, there are key elements that effective investigations have in common. Here are a few of my tips for conducting an effective investigation:

1. Act quickly, but not hastily. 
A good rule of thumb is to make contact with the complaining party within 48 hours, even if it is just to set up a time for a later interview. Matt Lauer was fired within 48 hours of NBC receiving the complaint. That quick time frame is exceedingly rare. Act quickly to start the investigation, but remember that conducting a good investigation that seeks the truth and respects all parties’ rights is more important than conducting a quick one.

2. Choose the right investigator. 
HR is often a good choice, but if the person accused of misconduct has significant clout in the organization, consider using the company’s attorney. Importantly, the investigator cannot have a stake in the outcome or be subject to influences that would make him or her come to a certain conclusion.

3. Plan the intake interview. 
Identify the scope of the allegations, evidence that needs to be preserved and collected, and witnesses to be interviewed (knowing that these items may change as the interviews are conducted). Then, outline the questions. This is not the time to wing it! You can ask additional follow-up questions in the interview, but make sure you plan to cover the basics. 

4. Consider interim measures. 
Do you need to temporarily suspend someone (with or without pay) or change supervisory responsibilities or reporting structures? This is an especially important step if someone in power is accused of sexually harassing a subordinate.

5. Interview witnesses. 
Start with the potential victim or person who complained. Thank them for bringing the concerns to your attention. Take good notes and include names, time, locations. Specific are paramount. Remember your 5 W’s (who, when, what, why, where). Ask the potential victim to identify others who have relevant information and potential evidence. Interview other witnesses; follow-up with witnesses as needed. When interviewing the subject of the complaint, permit him or her to rebut all of the allegations, and suggest his or her own witnesses and evidence. 

6. Be curious and professional. 
There are always at least two sides to every story. Keep an open mind and avoid preconceptions about where the evidence will lead you. Channel your inner Nancy Drew. Because you don’t know what happened yet, speak in terms of alleged conduct. Avoid unflattering credibility assessments like “she’s crazy,” “he’s a liar,” or “the way we handled the situation was sloppy.” Just the facts, please.

7. Set expectations about confidentiality, feedback. 
Explain to witnesses that you will maintain confidentiality when possible; request their assistance in keeping the investigation confidential. Don’t promise a certain timeline for completion. Explain to the complainant and the subject of the complaint that you will get back with them at the conclusion. Explain in advance that personnel actions, if any, taken against other employees are not public. Dissatisfaction with an investigation is often rooted in a gap in expectations on the outcome rather than in an inadequate response.  

8. Reminder of no retaliation. 
Investigations can be uncomfortable for everyone, and getting called into HR feels like going to the principal’s office, even when you’re just a witness. Employees often have hard feelings about “getting dragged into” the situation. During your interviews, remind every witness that retaliation is strictly prohibited, and document your reminder in your notes. Check in with complainants and witnesses following the investigation to make sure employees are not facing retaliation.

9. Come to a conclusion. 
Review all of your interview notes and evidence, compare the facts to the policy or rule in place, and determine the appropriate disciplinary action, if any. Consider how similar situations have been handled in the past. Maintain the investigation record (including notes, copies of records reviewed, any disciplinary decisions and a final report if one is drafted) in a separate, confidential file. 

10. Close the loop. 
Meet separately with the complaining party and the subject of the complaint. Explain the investigation is finalized. For the complaining party, let them know if action will be taken as a result, even if you don’t identify the specific discipline or training that will occur. If the investigation was inconclusive, invite a continuing dialogue. For the subject of the complaint, summarize the facts discovered, identify what rules were violated (if any), explain discipline and/or expectations for future behavior, and remind again of the prohibition on retaliation. 

With the recent uptick in high-profile firings, your company is likely to see an increase in complaints. That’s okay. Welcome the feedback. Liability often is not in the underlying action, but in how your company responds once it’s on notice of a problem. Your company should not shy away from allegations of wrongdoing. Conducting an internal investigation with integrity and confidence is the best way to discover weaknesses, and importantly, protect your company’s most valuable resource: its employees. 

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