Is it Time to Call a Professional Investigator?
May 25, 2021
By: Mary E. Funk, Frances M. Haas
As we have been discussing in our ongoing series relating to workplace investigations, if you have received a complaint of workplace misconduct or discrimination, conducting a prompt and effective investigation is your critical first step. It is also a powerful tool in rooting out and addressing future issues. However, conducting the “right” investigation can be a trap for the unwary and uninitiated. How do you know when it is time to call in the professionals? Consider the qualities of a successful investigator, as well as the unique dynamics of the particular situation at hand.
The Qualities of a Successful Investigator
Your investigator absolutely must have the following minimal qualifications:
- Strong interpersonal skills
- Ability to ask and get answers to hard questions
- Listening skills
- Objectivity and perceived neutrality
- Knowledge of employment laws
- Ability to spot significant issues and potential ramifications and pitfalls
If any of these qualifications are missing, it is more likely that the entire investigation can be called into question. For example, if the investigator does not pay attention to details, he or she will be unable to make credibility assessments between witnesses and will not be able to prepare a thorough report. Or, if the investigator has a reputation for being judgmental or harsh, witnesses may not be forthcoming. In such cases, the result will not be one upon which the organization can safely rely. Being an investigator is not for the faint of heart.
The Dynamics of the Particular Situation
Even if your usual investigator has all of the qualities necessary to conduct a successful investigation, you may still want to hire an outside investigator if you can answer “yes” to any of the following questions:
- Does the alleged misconduct involve a senior leader, owner or member of the board of directors?
- Does the complaint implicate the HR department (people or its processes)?
- Has the complainant already filed an external complaint with a governmental agency, such as the Iowa Civil Rights Commission?
- Is this your investigator’s first investigation?
- Is your investigator new to the organization in the last 12 months?
- Is your investigator’s time and expertise needed immediately elsewhere, possibly leaving the workplace investigation on the back burner?
- Is the complaint anonymous?
- Is it important that the investigation be protected from external disclosure?
- Is the complaint potentially mission-critical?
- Does the complaint have the potential to interest the press or the public?
An external investigator can provide the safety net necessary to protect the company in such situations, and can also help identify any recurring themes that could continue to cause problems down the road. The investigator must be able to begin the investigation right away and devote the proper time and attention to the matter. The company must give the investigator the authority and access to conduct interviews (of even top employees) and review all relevant corporate documents.
Failing to consider the qualities of the investigator and the particular dynamics of the allegations can lead to wasted time, wasted money and potential liability.
Once you have determined you need an external investigator, the next step is deciding who that person should be. Should it be an external HR consultant, a private investigator, a former law enforcement officer, your in-house lawyer or an external lawyer? Stay tuned for our next installment on this topic and learn WHO is the best choice to serve as an external investigator.