19

September, 2022

Workplace Investigations: Why Get a Written Report

One of the thorny process questions that eventually arises in any workplace investigation is whether and how to memorialize the findings and conclusions from the investigation. Is it sufficient just to save the notes from the investigation interviews in a file? How about a letter notifying the key parties that the investigation has been closed and the concerns raised were or were not substantiated? Perhaps an executive summary would be helpful to memorialize the concerns raised, the process followed, and the final conclusions? Or should you also capture the factual information considered and assessed in reaching those conclusions?

Retaining Notes
Yes, the notes should be saved from all investigation interviews. So should any other documents, photos, data, recordings, video or other electronic communications that may have been considered. All those items are important to reflect what issues were raised, what information was gathered, and what support exists for the concerns.

Notifying the Parties
Yes, you should notify the key parties whether the concerns raised were or were not substantiated. It is even more helpful if you inform all the parties – not just the complainant(s) and respondent(s) – that the investigation has been closed. Those communications may be verbal or written, depending on your organization’s practice and best determined with the guidance of legal counsel.

What is most important is that the communications actually occur. It provides closure to the parties and those involved in the investigation. That way they know that the issues were considered and appropriate actions have been taken. You thereby enhance confidence in your process — that concerns raised do not fall into a “black hole.” You also stem the tide of gossip.

When there is no follow-up, people wonder whatever happened with the matter that x person raised. Worse still, people conclude that because they heard nothing further it must mean that the organization did nothing with the information that those individuals had provided. All your hard work to investigate becomes for naught.

Drafting an Executive Summary
It often is helpful to prepare at least an executive summary of the investigation that was conducted. The executive summary should:
• Outline the concerns raised and when they were brought to the organization’s attention;
• Identify who was interviewed and their job titles;
• Identify what documents or other information was reviewed; and
• State the conclusions with regard to each concern raised and the key findings in support of those conclusions.

The executive summary serves essentially as a road map.  Decisionmakers can reference it as a basis for considering appropriate responsive action. Should a concern arise in the future involving one or more of the same parties or work group, a subsequent investigator can similarly reference the executive summary to understand the scope of the prior investigation.

While helpful, an executive summary by definition lacks detail. It does not summarize the information provided by each interviewee, it includes limited information about where conflicting accounts were provided and how credibility was assessed, and it most certainly cannot “stand on its own,” should the underlying complaint proceed to an adversarial posture. For that level of detail, you need a full written report.

Advantages of a Written Report
A written report should start with an executive summary and offers all the benefits of that as a road map to the issues, process followed, and conclusions. The written report should go further, though, and tell the full narrative of what concerns have been raised, what the interviewees said in regard to those concerns, where documentary or other evidence was relevant to the concerns, what conclusions were reached, and how those conclusions were derived. In contrast to the executive summary, the written report should provide sufficient detail such that it is not necessary for the investigator to provide any additional information.

A written report thus reflects the investigator’s findings and analysis, and thereby supports the conclusions reached. It memorializes a considered process and demonstrates due diligence by the organization. The report also allows decisionmakers to carefully consider appropriate action, consistent with the investigator’s findings.

Not every workplace investigation results in the drafting of a full written report. Cost and time often are significant factors, as a written report is not something that can be knocked out in a few hours. Where an investigation has found sufficiently serious violations of policy that the organization has decided to terminate the respondent’s employment, some organizations conclude that no written report is necessary. The termination itself is viewed to demonstrate the seriousness with which the issues were considered and addressed. Other organizations in that same situation will conclude that a written report is very much needed to memorialize why the respondent’s employment was terminated. That is particularly so if the terminated individual would have been eligible for some severance package, stock award or bonus, or is to be stripped of a prior award, based on whether employment was terminated “for cause.”

A written report offers other benefits. Sometimes an organization may disclose portions or all of the report to a complainant’s attorney and can use the report to further settlement discussions. Other times, the persuasion is internal, and the report may be impactful in garnering support from senior leaders for changes within the organization.

Ultimately, whether to request or prepare a written report is an individualized determination. Workplace investigations, done properly, take time and care. Organizations that commit that level of effort would do well to ensure they have memorialized their efforts in some fashion. That written record can inform future actions relevant to the individuals and group involved and the organization as a whole, and it can protect the organization in the event a matter proceeds to litigation.

By Tracey I. Levy

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6

September, 2022

National Panel Recommends EEOC Collect Even More Employee Data as Solution to Inadequacies of Past Pay Data Collection

In 2017 and 2018, employers with 100 or more employees were required to participate in what was effectively a grand experiment.  In addition to filing an annual EEO-1 form with the Equal Employment Opportunity Commission (EEOC), which collects certain demographic data, broken into job categories, related to their workforces, they were required to report a plethora of additional data pertaining to employees’ wages.  This “Component 2” data was collected with the intent of enabling the EEOC to identify disparities and address inequities in pay based on sex and race/ethnicity.

A recent report from the panel tasked with analyzing the usefulness of the additional data the EEOC collected is concerning in what it found and what it recommends.  It found that much data was gathered, but it is of little use for the intended analytical purposes.   It recommends gathering massive amounts of additional data — effectively subjecting every employer to a detailed, annual or bi-annual pay equity audit — as a long-term solution.

How We Got to This Point

The initial collection of the Component 2 data was halted by the agency in 2017, with the change in presidential administrations.  A subsequent lawsuit filed by the National Women’s Law Center reinstated the regulatory requirement.  This led to employers belatedly reporting, beginning in 2019, Component 2 pay data for reporting years 2017 and 2018.

The EEOC then asked the National Academies of Sciences, Engineering, and Medicine to examine the quality of the data for its intended use and to provide recommendations for future data collections.  A panel of the National Academies reviewed the data to determine its usefulness in three contexts:

  1. 1. as an initial step in EEOC’s assessment of individual charges;
  2. 2. to examine pay differences at the national level; and
  3. 3. to assist with employer self-assessment.

The panel has issued a nearly 300-page report, which essentially found that, as executed, the 2017 and 2018 Component 2 data is of limited use in meeting any of the EEOC’s three objectives.

Viability as an Assessment Tool

Limits identified by the panel in terms of the scope and range of data collected suggest it is a poor tool for initial assessment of whether to file an EEOC charge against an employer, and an equally poor tool for employers to engage in their own self-assessments.  In particular, the panel noted the following flaws, which hinder pay equity analysis:

  • Only wage data was collected, not overall compensation;
  • Reporting is by pay bands, which is less useful than individual-level pay data, especially for discerning anomalies among small employers and in the highest and lowest paying occupations;
  • Pay data is broken down into reporting for 10 job categories used by the EEOC for EEO-1 reports, but those categories are outdated and overly broad for purposes of making effective comparisons;
  • Hours worked data was not helpful.  It required extensive cleaning, more than was possible for the panel to complete for purposes of its report.  Also the hours worked did not delineate full-time, part-time and seasonal employees, or when employees were on paid leave, all of which affect the calculation of annualized pay;
  • Data was overly generalized demographically, notably with only a binary designation for gender and with delineations that combine race and ethnicity into a single list, allowing no separate designation for those of Hispanic or Latino national origin who identify as white.   Also, to the extent there are additional protected characteristics (pregnancy, age, disability, and veteran status) that fall within the EEOC’s enforcement remit, no data was collected for evaluation; and
  • Data did not reflect education, tenure, performance or other legitimate causes of pay differences, which the report noted “diminishes the robustness of data” for purposes of initial EEOC investigations.

The panel concluded that the data collected on the current Component 2 forms could be used to identify potential outliers, but only as an initial step to prioritize investigations and the allocation of resources.  In other words, it was better than nothing, but not very helpful in actually determining whether employees are being paid disparately for discriminatory reasons.

Viability to Examine National Pay Differences

The panel also noted several flaws in the quality of the data that limit its viability for examining pay differences at the national level.  Employers with fewer than 50 employees could opt out from the data reporting and many did.  Other smaller employers provided a more summary version of the data, known as “Type 6” (as was permitted under the EEOC’s regulations).  Type 6 reports listed salary data based on the total number of employees, without specifying sex, race/ethnicity, occupation or pay bands.  The panel found the resulting product so unhelpful that it excluded all “Type 6” data from its analysis.

Further flaws included numerous reporting errors, so much so that the panel excluded from its analysis more than one-third of the data provided.  In addition, the proportion of reporting establishments for 2017 that could not be aligned to reporting establishments for 2018 was statistically much greater than Census Bureau data on the proportion of establishments that had opened or closed in that time period.  The panel concluded part of the problem were inconsistencies in the identification numbers that establishments used on their reports, which hindered matching.  Also, professional employer organizations (PEOs) that were reporting for multiple, otherwise unrelated client entities, sometimes submitted the reports under the identification codes and industry categories applicable to the PEO itself, instead of breaking down the data to align with the codes and categories for their various clients.

The panel concluded that, once reviewed and cleaned up (which it repeatedly referenced as a necessary step), the reported data could be used to estimate raw pay gaps at the national level by sex, race/ethnicity and job category.  Here, too, the data collected thus fell short of achieving desired objectives.

Short-Term Recommendations

The panel proffered a series of recommendations for improvements that could be made in the short-term to maximize the efficacy of the data being collected.  These recommendations included:

  • Better outreach to enhance compliance;
  • Use of statistical weighting of data for analysis and reporting on a national or sub-national basis;
  • Combining the components of the EEO-1 reporting into a single data-collection instrument with a standard reporting period;
  • Carefully reviewing and cleaning the data before assessment;
  • Eliminating reporting for employers with less than 50 employees, but continuing to require multi-establishment firms to file a consolidated firm-level report that includes entities with fewer than 50 employees;
  • Requiring PEOs to submit data separately for each firm they represent, using the client firm’s industry code;
  • Allowing a method for employers to download and review responses before submission for quality control;
  • Collecting W-2 box 5 total compensation data, instead of box 1 wage data;
  • Adopting narrower pay bands, with more pay bands for top earners; and
  • Allowing a demographic category for individuals with more than one race and finding measures that recognize gender as non-binary.

Before any revisions are made to the form, the panel cautioned that field tests be conducted to assess the burden, data availability and questionnaire design.

Creating More Robust Data Collection

The panel suggested that, in the longer term, the EEOC can more effectively achieve its stated objectives if it reconsiders its current approach to data collection and implements substantial changes to its measures.  Rather than directing employers to aggregate their employee data into what it described as “legacy” aggregated job categories, the panel recommended a series of changes that would essentially amount to a pay equity audit of every covered employer.

This would be achieved through four key changes.  First, job categories would be delineated using the more detailed Standard Occupational Classification system for classifying occupations.  Second, individualized data would be distinguished based on status:

  • exempt and non-exempt;
  • part-time and full-time; and
  • seasonal or year-round,

with hours worked collected only for non-exempt employees.  Third, employers would be required to report individual-level data relevant to pay disparity analyses, including:

  • education;
  • job experience; and
  • tenure.

Fourth, the range of demographic data would be expanded to include age,  disability and veteran status.

Tackling Pay Inequities

The panel is correct that, were the EEOC to adopt most or all of the panel’s four recommended actions, it likely would have the data necessary to achieve its objectives of identifying which employers to target for enforcement actions and could examine pay differences on a national level.  But at what cost?

The panel theorized that the administrative burden of more individualized data reporting might prove to be less than that posed by the current EEOC job categories, because the EEOC’s categories do not align to any other government or employer reporting system.  While potentially saving employers one step, though, the panel’s suggestions would add numerous additional data fields, many of which are not currently tracked in a meaningful way by employers’ information reporting systems.  Recognizing that possibility, the panel suggested that bi-annual reporting might suffice and it stressed that any additional data reporting requirements should be field tested before they are adopted.

Beyond the administrative burden to employers, it is questionable whether the EEOC remotely has the capacity to massage all that raw data into a meaningful analysis.  Having lots of information is not helpful if you are not able to pull it together and extrapolate from it.

Most significant is the data privacy concern.  How do we as a society feel about providing the federal government with individualized data on the total compensation of each employee, together with their demographic data, performance ratings, skills and experience, tenure and other factors?  Even anonymized, the data gets to a level where some individuals will be identifiable.

More alarming still, the panel’s final recommendation was that, while protecting for confidentiality, the EEOC should strengthen its data sharing with the public and other government agencies.  So employers would not only be entrusting all this data to the EEOC, but should expect it would be shared with other government agencies, advocacy organizations of various sorts, and the general public.

Final Worrisome Thoughts

Currently pending before the Office of Federal Contract Compliance Programs (OFCCP) is a broad request under the Freedom of Information Act for all Component 2 EEO-1 reports filed by federal contractors from 2016 to 2020.  As there are a great many federal contractors, the OFCCP responded to this request by posting a notice in the Federal Register on August 18 and granting employers exactly one month to object to their data submission being released.  No individualized notice is being provided to potentially impacted employers, few of whom likely monitor that which is posted in the Federal Register.

The OFCCP’s handling of the currently pending FOIA request for Component 2 data does not bode well for employers or for employee data privacy, were the EEOC to broaden the pool of data that it collects.  Grounded in current, demonstrated government actions, employers and employees have reason for concern.

The objective of achieving employee pay equity is laudable, but the approach of providing massive quantities of data to the EEOC for purposes of analysis and enforcement is fraught.  Employers should watch for further action by the EEOC in response to the panel’s report.

By Tracey I. Levy

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16

August, 2022

Employer’s Enforcement of Social Media Policies May Turn on State Law

Can you discipline or even fire an employee for postings on a personal social media account that convey a message inconsistent with the values of the organization?  The answer may depend on geography.

State borders affect employees’ workplace rights.  One example of this is the varying approaches that New Jersey, New York and Connecticut have taken with regard to employees’ “free speech” rights.  Technically, employees working in the private sector have no First Amendment free speech rights, as I recently discussed in a prior blog article, because the Bill of Rights only applies to government action.  But state laws can also grant employees free speech protections.  Connecticut has done so; New Jersey has not; New York is sort of in the middle.

Connecticut Protects Employees’ Free Speech

Connecticut prohibits all employers from disciplining or discharging  an employee for exercising rights guaranteed by the First Amendment or similar provisions in the Connecticut Constitution, provided the activity does not “substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”   On its face, the law does not protect all forms of employee speech, and the courts have interpreted the law to include two additional limitations, consistent with constitutional law principles:

  1. 1. The employee’s speech must pertain to a matter of public concern, and not merely an employee’s personal matters; and
  2. 2. (a) The employee generally needs to be speaking as an individual, and not in an official or representative capacity for the employer; or

(b)The employee’s speech in an official capacity must be related to a matter of significant public interest that involves dishonest or dangerous practices by the employer, and the employee’s interest in speaking up must outweigh the employer’s right to control its own employees and policies.

There are few reported cases in which an individual working for a private employer successfully established protection under the statute.

The current legal standard for analyzing these claims was outlined by the Connecticut Supreme Court in Trusz v. UBS Realty (CT 2015).  In the subsequent history of that case, the federal district court in Connecticut held that the head of UBS Realty’s valuation unit could proceed to trial with a claim that he was wrongfully terminated under Connecticut’s free speech law for a whistleblower complaint.  Trusz complained that he had repeatedly raised concerns that the employer’s failure to disclose property valuation errors to investors and adjust its management fees based on those errors was a violation of the company’s fiduciary, legal and ethical obligations to its investors.

Subsequent courts have allowed claims to proceed against private employers in analogous whistleblowing contexts:

  • for declining a supervisor’s direct request and expressing discomfort with creating fraudulent time sheets for services a non-profit had not provided, to be presented at an upcoming state audit;
  • for twice objecting to driving a tractor trailer transporting hazardous waste on public highways using vehicles that presented safety issues; and
  • for expressing concerns to the owner of a used car dealership that a supervisor was having firearms delivered to the office and storing them unlocked under his desk.

In contrast, the courts have declined to allow claims to proceed that involved matters of employer policy or individual behaviors.  For example:

  • dismissing a claim based on a manager internally raising a pay inequity among supervisors;
  • striking an employment discrimination claim that an employee was disciplined because of her personal friendship with a former CEO; and
  • striking a claim based on concerns raised in an open workplace forum that the company was paying large bonuses to executives in a poor economic climate that would hurt shareholders and the public good.

The modest number of private sector cases under the Connecticut free speech law is indicative of the limitations in its reach, and none appear to have considered the law in the context of an employee’s social media activity.

The Trusz case and other decisions suggest that social media posts that pertain to whistleblowing activity may fall within the protections of the free speech law.  Employers that are looking to discipline employees for social medial activity on other subjects, such as political expressions on race, religion, abortion, or other sensitive matters that may not align with the employer’s expressed values, should first consult with legal counsel as to whether the employees’ conduct is likely to be considered protected.

New Jersey Does Not Provide Free Speech Protection

The hypothetical situation of the employee posting on social media was directly considered by the New Jersey Appellate Division in McVey v. Atlanticare Medical System (May 20, 2022).  The case originated in 2020, during the height of the nationwide protests responding to the death of George Floyd.  The plaintiff, who held the title of Corporate Director of Customer Service, participated in a Facebook discussion related to the Black Lives Matter movement and responded that she found the phrase to be racist and bothersome because it “causes segregation.”  In response to a further post that Black Lives Matter is bringing attention to the plight of Black people who are dying in America, she replied, “’[T]they are not dying…they are killing themselves,” and she later posted that she “’support[ed] all lives . . . as a nurse they all matter[,] and [she] d[id] not discriminate.’”

The employee’s job title and affiliation with her employer were clearly identified on her Facebook profile, and her postings came to the attention of senior management, who asked her about them.  The employee acknowledged the posts, and in a subsequent meeting with senior managers she revealed she was recording the conversation.  The employee was promptly terminated for “repeated instances of poor management judgment” and a “failure to uphold the company’s values.”

The employee sued, asserting that she had been wrongfully terminated in violation of public policy, citing the First Amendment and the corollary protections under the New Jersey Constitution.  The New Jersey Appellate Division held that neither the First Amendment nor the New Jersey Constitution reflect a clear mandate of public policy that prohibited the employee’s termination.  The Court observed that these constitutional protections apply to state action, and not actions taken by a private employer toward an at-will employee, and specifically noted that New Jersey had no corollary to Connecticut’s free speech law.

New York’s Middle Ground

New York law does not expressly provide employees with free speech protections in the private sector, but it does protect employees’ right to engage in certain lawful activities outside of work.  Four types of activities are expressly protected by New York law:

  • certain political activities – running for public office, campaigning for a political candidate, or fund-raising for a candidate, political party or political advocacy group – if conducted completely outside of work;
  • legal use of “consumable products” (ie: alcohol, tobacco products and now marijuana) if conducted completely outside of work;
  • legal recreational activities – sports, games, hobbies, exercise, reading, watching television or movies and similar leisure time activity – if conducted completely outside of work; and
  • union membership or related organizing activities.

Evan as to those protected activities, the law expressly allows employers to take actions to protect trade secrets, proprietary information and other business interests; to direct employees into a substance abuse or alcohol program; and to align with union contracts.

The statute’s limited definition of “political activities” would not extend to most employee social media activity.  Rather, such activities may fall within the third category of “legal recreational activities.”  There is a difference, however, between an employer disciplining an employee for blogging or posting in general on social media, and an employer responding to the content of specific messages or images that an employee may post or respond to on social media.  The former is likely protected; the latter may not be.  Again, employers should consult with legal counsel before taking disciplinary action in this context.

Employers Should Proceed with Caution

The McVey decision should give New Jersey employers some comfort and bright-line principles for addressing employees’ social medial activity, at least where employees have directly identified their employer affiliation in their postings.  Employers in Connecticut and New York should be mindful that there are legal protections that extend to employees in this context, and should seek legal advice relative to specific factual situations before taking responsive actions.

By Tracey I. Levy

 

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1

August, 2022

3 Key Considerations Under GINA – the Federal Law You May Have Overlooked

The Genetic Information Nondiscrimination Act (GINA) may be the sleepiest of the federal EEO laws, the one that many employers have never heard of or have entirely forgotten.  It prohibits employers from collecting genetic information from employees and using that as a basis for employment decisions.  Most employers, in the practical realities of day-to-day interactions, have little or no interest in their employees’ genetic information and never run afoul of the law.  The EEOC’s charge-filing statistics reflect this as well.  Of the tens of thousands of charges filed annually with the EEOC, typically only 200 to 300 include reference to a claim under GINA. 

But things have changed a bit with the pandemic. Charge filings asserting a violation of GINA spiked to 440 in 2020 as employers began more formally to formally probe into employees’ personal lives, and the EEOC posted lengthy guidance on employers’ obligations under various federal laws, including GINA, when responding to the COVID-19 pandemic.  The EEOC’s guidance sets the parameters of appropriate inquiries in the COVID-19 context, but it also serves as a primer for employers on the scope of GINA. 

Don’t Ask About Family Members 

GINA prohibits employers from asking medical questions about family members. In the COVID-19 context, that has meant that employers seeking to gather information about employees’ COVID exposure can ask if an employee has been in close contact with someone who tested positive or was exhibiting symptoms of COVID. An employer cannot ask whether an employee’s family member has tested positive for or exhibited symptoms of COVID. The latter inquiry runs afoul of GINA. 

Similarly, in more typical workplace interactions, employers should coach their managers not to probe too closely into employees’ family medical histories. If an employee reports a recent cancer diagnosis, for example, an appropriate response is to express sympathy and ask if the employer can provide support. An inappropriate response in having that conversation is to ask whether cancer runs in the employee’s family, or anything along those lines – such inquiries might be common in conversations with friends and neighbors, but in the workplace they may run afoul of GINA. 

A Florida-based medical practice learned a painful lesson on the reach of GINA. The employer had been collecting employees’ family members’ COVID-19 testing results. The EEOC recently announced it had reached a conciliation agreement with this employer, which included payment of compensatory damages and back pay to employees, posting a notice, and conducting training on EEO laws pertaining to COVID-19. The employer also had to stop collecting employees’ family members’ test results. 

Collecting Vaccination Information is Permissible 

The EEOC guidance clarifies that information on vaccination status (as distinct from COVID symptoms or test results) is not considered family medical history. Therefore, employers can request proof of vaccination of employees and their family members without violating GINA. Notably, though, if an employer were to gather information on medical history related to an employee’s family member’s vaccination status, then the employer would potentially run afoul of GINA. It was important to the EEOC’s analysis that the pre-vaccination screening questions for COVID-19 do not seek family history or any other type of genetic information. 

Incentivizing Vaccinations is Complicated 

Employers looking to take their COVID precautions to the level of incentivizing employees’ family members to get vaccinated face various hurdles under GINA:

  1. 1. Beware of incentives.

The employer cannot offer an incentive to the employee in exchange for a family member receiving a vaccine from the employer or the employer’s agent because, in posing the pre-vaccination medical screening questions, the employer would thereby be collecting family medical history on the employee.

2. Make it Purely Voluntary

The employer must ensure that the vaccinations of family members are purely voluntary, meaning that the employer neither requires employees to have their family members get vaccinated nor penalizes employees whose family members opt not to be vaccinated.

3. Keep it Confidential

Employers need to safeguard the confidentiality of the medical information obtained from family members during the screening process, and ensure it is not shared with anyone who makes employment decisions involving the employee.

4. Get Written Consent

Employers need to obtain prior, knowing, voluntary, written authorization from the family members before asking any pre-screening questions or administering the vaccine.

Other EEO laws may present additional hurdles in the vaccination context, and employers are advised to consult legal counsel before implementing any vaccine incentive program. 

By Tracey I. Levy

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21

July, 2022

Workplace Investigations: When Should You Consider Retaining an Outside Investigator

Increasingly, organizations are conducting workplace investigations in response to employee concerns – both those raised formally to human resources or through a written complaint or attorney demand letter, and those raised informally in a conversation with a supervisor that is brought to human resources’ or an equivalent function’s attention.  Matters that, in the past, might have been handled by a conversation with the subject of the complaint and perhaps one or both parties’ managers are now referred for an investigation.  That typically comprises documented interviews with both parties and others believed to have relevant information, as well as a review of other materials, including documents, electronic communications, recordings, and physical items.

Human resources is most typically tasked with conducting these types of investigations.  In organizations with a larger HR function, there may be a dedicated employee relations function or equal employment opportunity (EEO) office to handle the investigation of matters potentially involving serious policy violations, such as the EEO or workplace violence policies.  Complaints about workplace conditions (not involving health or safety concerns) or more generalized issues of unfairness or favoritism (not based on any protected characteristic) are often looked into by the HR generalist supporting that business function.

Sometimes, though, an organization is best served by retaining someone outside the organization to investigate a workplace concern.  In my 15 years conducting workplace investigations, I have found that determining when to retain an outside investigator largely depends on four factors: conflicts of interest, sensitivity of the issue, skills and experience, and workload management.

Conflicts of Interest

CEOs/business owners, board chairs and other senior leaders can be the subject of an employee complaint reflecting a potential serious policy violation.  Or a workplace concern may involve the head of the organization’s human resources, compliance or legal function.  In each of those circumstances, the individuals within the organization who would typically be conducting a workplace investigation are being asked to look into a complaint against the people who ultimately determine the investigator’s pay and future with the organization.  The internal investigator’s independence and ability to conduct an effective investigation may be compromised in that situation.

Even if the internal investigator feels equipped to disregard the underlying power dynamics and objectively gather and evaluate the factual information, there is an overriding appearance of undue influence that may undermine the confidence of the complainant or other parties in the objectivity of the outcome.  The complainant may raise concerns about the process to coworkers, and employees may be disinclined to raise concerns internally in the future.

An outside investigator can help an organization avoid these conflict-of-interest concerns.  The outside investigator may be retained by and asked to report directly to the board, outside legal counsel, or a senior leader within the organization who is above or outside the reporting lines of the parties involved in the matter (such as reporting to the CEO or CFO on a matter involving department heads within human resources or legal).

Sensitivity of the Issue

Sometimes the nature of the concern raised warrants retaining an outside investigator.  For example, matters involving a sexual assault or a domestic violence issue that has carried into the workplace may present particular sensitivities that the internal investigations team is not experienced to handle.  A trauma-informed approach is recommended for investigating these types of matters, which involves a focus on open-ended questions, delicate probing, and an appreciation that the complainant’s account may be fragmented or disjointed but still credible.  These attributes of a trauma-informed approach are arguably best practices for any workplace investigation, but if the internal team lacks appropriate training in them, then an outside investigator may be a better option to conduct an appropriate investigation.

Skills and Experience

Smaller organizations often do not have an internal human resources function.  HR support may be provided through a professional employer organization (PEO) or may be assigned to the business owner, the head of operations or the finance head.  Or perhaps an organization does have one or more internal people responsible for human resources, but their role and experience has primarily focused on recruiting, benefits administration or HR advisory work, with little or no experience conducting workplace investigations.  In these situations, leveraging the skills and experience of an outside investigator is helpful.  Some organizations will retain an outside investigator for support on an ongoing, as-needed basis, while others may retain an outside investigator more ad hoc, if a concern has been raised where an investigation seems appropriate.

Workload Management

Finally, sometimes an internal HR or investigations team just has too much on its plate or is short one or more staff and needs additional resources on an interim basis.  In these situations, the outside investigator still offers the benefit of more independent accountability and perspective, but primarily the investigator’s value is in being able to “hit the ground running” and offer support.

Final Considerations

An experienced outside investigator can be a helpful resource to organizations in a range of situations.  It is helpful to articulate to the investigator at the outset the business issue that prompted reaching out to someone external to the organization.  If, for example, an outside investigator is being retained due to a conflict of interest, then clarifying to whom the investigator will be reporting is important to ensure there is no perpetuation of the conflict.  And if the investigator is simply an extra set of hands to manage workload, then it is important to clarify when and how the investigator will be engaged for specific matters.

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In this Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

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