Investigator selection is a crucial component of any successful investigation. In smaller companies where employees frequently interact and know each other on a more personal level, investigator selection is a very difficult task. Depending on the size of an organization, companies may use third party investigators, while others use internal staff. There are pros and cons to both, as internal employees are fully versed in company policy and procedures, whereas third party investigators are able to maintain neutrality, as it’s unlikely they have any personal interests vested in the outcome of the investigation. When selecting investigators, focus making decisions to reduce personal bias and increase investigator neutrality.
What to Look For:
According to guidance offered by the EEOC through their “Enforcement Guidance: Vicarious Employer Responsibility for Unlawful Harassment by Supervisors,” they conclude investigators should be selected based on their ability to objectively gather and consider relevant facts pertaining to the investigation. Investigators should be well trained in all areas covered by the investigation, including evidence preservation, interviewing, determining statement credibility and areas of employment law. The EEOC also suggests the “harasser” shouldn’t be in a supervisory position to the individual conducting the investigation, as this could potentially impact the conclusions drawn from the investigation. In the Mediation Blog post, “Neutral Investigations of Workplace Disputes,” author Roger Benson writes:
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“Here are some critical things to look for when evaluating candidates:
- In-depth understanding of the law of the workplace and the alternatives to a negotiated settlement.
- Experience, skill and personality to quickly establish trust and confidence in the integrity of the investigation process.
- Insight to gather all of the facts necessary to develop a coherent, thorough and accurate assessment of the dispute.
- Expertise to provide recommendations for a practical, cost-effective and durable resolution.”
The Strategichrlawyer.com article by Diane M. Pfadenhauer, “Workplace Investigations: Rethinking the traditional paradigm and advocating the use of third party investigators,” provides a list of some additional skills to look for when selecting investigators:
1. Knowledge of the industry- If special skills or experience are required for an investigation to be conducted properly, select an investigator who meets the particular requirements. Familiarity with the industry the investigation occurrs in is ideal, as the investigator already has an idea of what questions to ask, the evidence to look for and can add value to the investigation with their experience.
2. Knowledge of the workplace- Understanding workplace policies makes it easier for an investigator to conduct a thorough investigation into workplace misconduct. Knowledge of company operations and culture contribute to a stronger understanding of why company policies are designed the way they are.
3. An understanding of the legal process- Knowledge of the litigation process and laws governing companies in various industries increases the effectiveness of an investigation. This is particularly important in planning the investigation and anticipating where to locate evidence, resulting in a complete investigation.
4. Knowledge of the subject matter in question- When selecting an investigator, consider their area of expertise. If the investigation involves accounting or finance, have someone who is an expert in that field carry out the investigation. They will be better at understanding the misconduct and will know what questions to ask and evidence to look for.
5. Ensure attorney client privilege is preserved- During the planning stages of the investigation, determine if outside counsel will be used. If so, make it very clear who the counsel represents.
The Importance of Neutrality
When it comes to deciding between using internal or external investigators, there are many conflicting views as to which group properly maintains neutrality throughout the investigation. There is no right or wrong answer. Organizations need to evaluate and determine which source best suits their investigative needs. In Benson’s blog post, “Neutral Investigations of Workplace Disputes,” he discusses neutrality when using a third party investigator:
“People are more likely to cooperate and offer candid information if they see the investigator as someone interested in the truth and without a hidden agenda or pre-conceived ideas. They also see a neutral investigator as an indication of the employer’s good faith commitment to conducting a legitimate investigation.
In contrast to Benson’s opinion, others feel an investigator from within earns the trust of the employees involved in the investigation, as the investigator is a familiar face. Some employees are more likely to open up to someone they know and feel comfortable talking to, contributing to the success of the investigation. Internal investigators are already familiar with the culture, policies, and laws governing the organization, reducing the time spend educating an external investigator on these matters. The decision to use internal or external investigators depends on a variety of factors, including the issue under investigation, the employees involved, corporate culture, company size and skill sets of internal employees.
Successful investigations contribute positively to corporate reputations. On their corporate website, PricewaterhouseCoopers provides advice for selecting an internal investigator, stating:
“The company needs to ensure investigators are fully independent in forming their opinion. The measures taken to guarantee their independence must be explicitly documented. Given the complexity of most investigations, we recommend seeking expert advice from the very beginning of the process. We advise you to select parties not only with extensive experience and a wide range of applicable skills, but also with an impeccable reputation: corporate image is often a crucial factor in these investigations.”