Lawyers and human resources professionals who are committed to their craft are fundamentally in the business of helping people. Our most natural tendency is to determine solutions to problems. We learn of a concern, filter it through our own lens of experience both personal and with respect to the specific organization, work group, and seemingly relevant people, and determine what action should be taken. Historically, that was how nearly all workplace issues were resolved, certainly in the first third or so of my career. That remains the tried and true approach for many workplace issues.
Why is “Tried and True” a Problem?
When we react based on one person’s account, however, we may be missing essential information. Sometimes you are not being told all the information that person knows, but only a filtered slice of information that the person chose to share, which best supports that person’s position.
Taking action based solely on that one account or based on that account plus the HR team’s own filtered perspective of the relevant parties, gleaned from past experiences supporting the work group, may effectively resolve the issue. That is why it was deemed “tried and true.”
Sometimes, though, that approach can be way off the mark. And you will not know how far off you are until you are facing down
- a lawsuit, or
- a severe decline in team morale, cohesiveness, and productivity, or
- reputational harm from a blog post gone viral or an expose in a well-read publication, or
- all the above.
Wait for Findings
A workplace investigation adds an intermediary step and often an additional layer of skills and personnel input. We do not leap from receipt of a concern to resolution, but rather we pause to receive and assess additional information. Particularly when the alleged behavior could be a serious policy violation – harassment, discrimination, bullying, conflicts of interest, misappropriation, or other legal or ethics concerns, the higher stakes often warrant pausing to investigate.
Most fundamentally, a workplace investigation should involve three key elements:
- identifying the issues;
- gathering information from the relevant parties; and
- continuously assessing the information gathered to make factual findings.
No conclusions should be reached until all the factual findings have been made.
How Waiting Can Help
As an investigation unfolds, behaviors that may have sounded serious or problematic may be found to be something quite different. They may still reflect challenges in the organization and opportunities for improvement, but not necessarily violations of policy. Or the investigation may reveal patterns of behavior, ranging from relatively innocuous to quite severe, that had gone unnoticed or never been disclosed previously, reflecting far more egregious behavior than what could have been anticipated from the initial complaint.
It can be challenging for the investigator when an organization requests updates on the investigation at periodic intervals during the investigation process. While I always accommodate such requests – after all, the client wants to understand where it’s money is being spent and how much longer things will take — any such update must include the caveat that the investigation remains in process. The final conclusion may differ from how things seem at any interim stage.
From the investigations I have conducted over the years, I can provide examples of times when seemingly troubling behaviors proved to be less so in context, and times when those behaviors were merely the tip of the iceberg and the issues were far more severe or wide-ranging. Rarely were those divergences apparent after the first one or two interviews; rather they surfaced over time, as I analyzed varied accounts and pieced them together to determine what was more likely to have occurred.
Let the Process Play Out
The only certainty in this process, is that there is no certainty. Otherwise there would be no reason to investigate. It is for that reason that internal stakeholders and legal counsel should allow an investigation to progress before drawing their own conclusions or moving toward specific outcomes.
By Tracey I. Levy
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In this periodic Workplace Investigations blog series, I explore considerations that arise from 18 years of experience conducting workplace investigations and a decade of teaching others how to conduct investigations, both through my work as an educator with Cornell University ILR school’s professional certificate programs and through my own business, Impact Workplace Training. Past articles in this series have included:
Should Your Investigator Look Like the Complainant?
Hearsay May Be Compelling in No Witness Harassment Complaints
When Should You Consider Retaining an Outside Investigator
Consider Transparency of Outcomes from Workplace Investigations
