Employers Blog

What do you do when you have a union in your workplace? You better know what you're doing. So, if people are in a union, they have a union contract, and they also have rights protected by the case law of the United States Supreme Court.

Even as a third party external investigator, it's important that I be able to identify what should trigger an investigation. Not every client is completely sophisticated about title seven triggers and other employment-based triggers for investigation. Simultaneously, no client is excited about spending money on an investigation. So you better be able to sell your services just a little bit.

What do you do if you are concerned about the nature of the underlying claim, the series of facts, the incident being so complicated that you can't investigate it? I think step one is reminding yourself: you wouldn't be doing this work if you were not an intelligent person.

Most of the workplace investigations that are done are around Title Seven, Title Nine policy type issues. And it's a lot of human activity analysis – which, when you get down to it, looking at human behaviors usually doesn't need specialized knowledge. But sure, there are other things that can come up within an investigation that do require specialized knowledge.

Sometimes, this comes up with incidents that involve sexuality – a lot of times. But it could also come up with somebody's personal credentialing or their career, like if they're a little embarrassed of their slow career progress, or their family, or something like that.

It really depends what they need, but we don't... We can be empathetic, but we can't be therapeutic. We can be stern, but we can't be aggressive. And short of that, I think the answer about what tone we use with any particular interviewee is based on what they need.

How do you maintain investigative confidentiality when the nature of the questions you're asking basically tells people what you're investigating? I think this is a little bit less of an issue than it used to be, because people have gotten somewhat savvy to the workplace investigation - but also because post-MeToo and post-Black Lives Matter, people know what companies spend money on to investigate.

What do I do if there is so much going on in an investigation that facts are getting jumbled in my head?  I'm above average intelligence, or else I wouldn't be an attorney. I'm sure you are, too. But there are things and situations that are too big and too much and too many details for one brain to handle. It happens all the time in all kinds of investigations.

What do you do with an investigation about the way somebody is eating? So again, another tricky one. Obviously, we're going to collect our information from our reporting party and see what it is about this eating that's bothering them. And then also, why do they think that person is doing that? Probably going to ask the reporting party some questions about, "Why is this bothering you?" as well. Because we want to always be super, super careful about victim blaming and blaming the person bringing the complaint for being the aggressor.

What do you do when there are no witnesses or when there's he said, she said? That's hard. Parts of that you may or may not be able to determine. It's just the nature of there not being any evidence. And so it often comes down to both credibility and consistent behaviors in the workplace.