Workplace investigations are not – or should not be – simply about helping an organization limit or avoid liability. The simple act of conducting an investigation cannot achieve that. Why? Because the investigation can only reveal whether there is a problem; it cannot actually solve it. The investigation should be a means to an end, and not an end in itself.
Highest and Best Purpose
The best role that an investigation can serve is two-fold:
- It can help an organization identify whether there are workplace behaviors occurring that present a policy violation; and
- It builds employees’ confidence that an internal process exists for receiving, looking into, and addressing workplace concerns.
Indirectly, achieving those twin objectives will help an organization reduce its liability, but only because the process thereby resolves concerns before they are escalated to the level of a lawsuit.
Once the lawsuit has been filed, conducting an investigation will not magically make the legal action go away. The investigation itself will not be grounds for the legal complaint to be dismissed.
Money Not Well Spent
Once I was called by outside counsel to conduct an investigation for an organization I had not worked with previously. An employee was unhappy that the organization had made certain changes to his role, and claimed it was a discriminatory demotion. The employee wanted out of the organization and had detailed his settlement demands. “We are going to settle,” I was told, “but first we want you to investigate.”
Another time the call came from a small employment law firm, that wanted an outside investigator to look into a complaint of discrimination raised against the firm by one of its associates. The people hiring me were the same people who had taken the employment decisions now being characterized as discrimination. They knew the law and could immediately explain why they believed what they had done was lawful. They were simultaneously wrestling with newly discovered information that this same associate had engaged in serious misconduct – conduct that would be independent grounds for termination.
In each of these matters, the question in my head was, why bother? I did not ask it, because doing so is more appropriate for a legal advisor than my intended role in those situations as a neutral investigator. And ultimately, in each situation, the organization either moved on to hire someone else or recognized the futility of the endeavor.
I raise these examples here, though, to vocalize my questions for future employers to consider. If you already feel you know the actions that were taken, and you plan to separate the employee from the organization, then what is the purpose of the investigation? Just to be able to say that you had a third party look into it? Why not save yourself the cost of an investigator and use that money toward a settlement package?
In short, if you are retaining an investigator for appearances sake, and not because you think there is anything to be learned or any decision you might change, then you should reconsider the plan to hire an investigator. On the flip side, when the allegations are severe and you do not know what happened or whose account to believe, an independent investigator can provide huge value to you in gathering information, analyzing the varied accounts, and sorting things out to reach conclusions.
The Silver Lining of Investigations
Even when an investigator concludes that no policy was violated, investigations often reveal underlying issues in an organization – missed communications, misunderstood standards or expectations, simmering tensions, disrespectful behavior, or subpar management practices. These are issues that may or may not have been familiar to the affected group or team. They likely were not known to more senior levels of the organization or to supportive functions like the Human Resources team.
Identifying those issues is what we call the “silver lining” of the investigation process. You cannot fix that which you did not know was occurring, and investigations highlight the opportunities for organizational improvement.
Actions Need to Follow
Significantly, an investigation with well-supported findings cannot be the end of the process. The investigation is more the middle stage in what should be a multi-step process of organizational responsiveness.
Once the investigation has concluded, if policies are found to have been violated then the organization needs to take corrective and disciplinary measures to address the offending behavior. Even if no policy violations were found, clarifying responsibilities, skill development, and other coaching or training may be appropriate to improve the work group going forward.
Whatever outcomes the organization ultimately determines to implement, the fact that the investigation was concluded, that findings were reached, and that actions are being taken should all be communicated to the participants. By doing so, as I discussed in this prior blog post, the organization can achieve its goal of building employees’ confidence in the employer’s internal process for receiving, looking into, and addressing workplace concerns. That would be money well spent.
By Tracey I. Levy
