Top Questions from First-Timers About Hiring an Independent Investigator
Sept. 12, 2017
There are several questions that the Lynch Law Firm receives with regularity from organizations that have not previously hired or conducted investigations in their facilities. The questions stem primarily from a concern about meeting legal obligations and control of the process, and they are often related to obligations that they do not completely understand. The costs of a workplace investigation are also a factor when facing your first investigable matter.
What Do We Do?
When you call LSC and don’t know where to start, we will start by simply asking what you are most concerned about. There are lots of considerations, but it is most important to focus on the ones the company itself is most concerned about. That being said, LSC’s most immediate concerns will be 1) what scale of investigation is required and 2) how quickly can we start
There is no rubric of adequacy when it comes to investigations. Courts don’t ever exactly tell us when it is OK to have a 5 minute investigation or when external investigators are required. LSC is happy to consult with potential clients regarding these considerations to help you determine what is most appropriate. Sometimes, the best answer is to allow an external investigator to conduct an initial interview so that the true nature and scope of the matter can be identified before additional financial obligations are made.
The promptness of the investigation is paramount. One thing courts consistently insist on is that an investigation be performed promptly. It is best to immediately respond with an appropriately scoped investigation, and sometimes capturing the immediate response of the reporting party can be done while finances, documents, other evidence, and travel arrangements are aligned.
We Just Need to Document that We Did an Investigation and Fixed Things
Obviously, businesses are not interested in giving away money unnecessarily, but the “independent” aspect of a workplace investigation is also paramount. Courts require neutral, independent, and unbiased investigations, and a reputable investigator cannot work with an organization that insists on controlling the process and the output. Reputable investigators also become “reputable” by conducting appropriately scoped investigations that are managed well and have robust documentation. LSC is certainly a for-profit company, but we cannot oversell our services and maintain our reputation for appropriate scale; we are not interested in over-selling what we believe is required based on the facts presented to us.
An investigative report that results from an appropriate investigation will serve many purposes. Among them, a good report will enable the employer to rely on comprehensive and targeted information to make decisions about remedial action. A good report will also set up an employer to create evidence that establishes the genuine efforts to understand and remedy any wrongdoing they are culpable for. Smart employers regularly use our report to resolve underlying efficiency and effectiveness issues so that they increase the functionality of the workforce investigated.
We Did Not Budget for an Investigation
Most small and mid-sized companies do not budget for investigations, and there is only a slim chance that your employment practices liability insurance (EPLI) will cover an investigation. Frankly, you may need to find the money to comply with your OSHA, Title VII, ADA, or the relevant legal obligations as an employer. At the end of the day, if you cannot find the amount of money appropriately spent in response to your incident, it is far better to do what you can and document why you did not do more.
The costs of an investigation should be mostly accurately scoped at the onset. On the rare occasion of a truly unforeseen expense stemming from an investigation with LLF you will know about those matters before related costs are incurred. Conversely, litigation costs are astronomical and, by and large, outside the organization's control. Organizations that need to predict upcoming prices are much better served by performing an investigation that will satisfy their legal obligations, generally enable them to avoid litigation, and minimize any litigation that does flow from a workplace matter. Litigation costs are significantly higher than litigation-avoiding workplace investigations.
Another way to look at this issue is to realize that something about your organization allowed a lousy incident to occur. Until you, as the employer, understand the nature and breadth of your workplace dysfunction, you have no idea how much these incidents cost you every day. For example, suppose a hiring manager is consistently hiring a particular personality type that does not jive with the work that must be done in your organization. In that case, it will be nearly impossible to understand that before an individual with neutral and unbiased intent uncovers and explores those issues. Similarly, suppose an employer’s systems are unintentionally causing havoc on the humans in your workplace. In that case, it can be impossible for the stakeholders of those systems to capture the functions that are causing unintended negative output. LSC serves the role of the neutral, independent, third-party investigator that can identify the intended or unintended consequences of a workplace.
We Do Not Have the Flexibility to Allow Staff to Sit with Investigators
There is no denying that workplace investigations are disruptive. Still, the dysfunction that caused your workplace incident was, in all likelihood, far more disruptive than the costs of an efficient workplace investigation. Part of the efficiency of working with the Lynch Law Firm is that our team has substantial experience juggling shifts, vacations, schedules, and personalities discretely. Each of LSC’s tenured and experienced investigators will make some calculated efforts to accommodate the efficiency and effectiveness of your organization’s core business while still conducting the investigation promptly. An investigator's time in your facility or with your employees should be brief and deliberate. Relatedly, we often receive questions about running work from out of town. It is perfectly appropriate to work with out-of-town investigators because the time an investigator spends at the facility should be minimized, regardless of travel.
After a workplace incident, workplace gossip is often fueled by coworkers’ needs to synthesize the event and by efforts to cope with similarly situated individuals. Regardless of the reasons, the post-incident word is both disruptive and inefficient. Additionally, sometimes a workplace investigation increases time spent by employees engaging in talk. While investigators and employers cannot legally prevent all conversations about studies, there are steps that LSC takes to ensure gossip is mitigated. In this way, LSC also counters the cost of an investigation by increasing the workplace efficiencies inherently lost after a workplace matter.
We Understand the Problem, So Why Can’t We Fix It Ourselves?
Some workplaces have internal investigators, which is a fantastic solution for mega-companies. However, most companies do not have specialists, and workplace investigations are fraught with risk and liability. I often ask non-specialists considering doing their own research, “What are you doing to prevent false imprisonment claims?” because if your organization is so inexperienced that you don’t understand what imprisonment has to do with investigations, it is best that your organization hires an expert. Another red flag is an organization that says they know a circumstance and will conduct an investigation. When an organization already knows the outcome, they run a witch-hunt rather than research. Courts require neutral and independent studies, and LSC can help organizations without internal investigative teams to address this requirement appropriately.
After conducting thousands of investigations, any experienced outside investigator will tell you they have never concluded an investigation in exactly the same way they thought they might. External investigators exist precisely because it takes an outsider to identify and resolve the dynamics in a manner that insiders are too invested in determining. Frankly, the fact that you are reading this probably means that it has occurred to someone in your organization that an external eye is the most appropriate in investigating your matter. That being said, LSC is very willing to talk through any employer’s current issue to help them scope the type and scale of the most appropriate investigation.
LSC Knows Nothing About Our Industry
Neither does a judge. As a consultant, each investigator is skilled at quickly collecting information about an industry that is pertinent to a matter and an investigation. Most of this work may be performed in the preparation phases, but additional insight will be gained in the first interviews. That industry information will be coupled with information about the organization's culture and the incident itself and articulated within the investigative report. The investigative report will explain enough about the work of the involved parties so that outsiders, such as an attorney, human resources expert, industrial-organizational, or judge, can decipher the pertinent industry influences on the incident being evaluated.
How Do We Make This Go Away?
Another benefit to hiring an external organization is that you are handing over some amount of responsibility to those investigators, giving managers enough breathing room to resolve a matter once investigative results are delivered. Ignoring a workplace matter and a legal duty may seem like the most straightforward resolution to an issue, but in the long term, workplace dysfunction, workplace inefficiencies, and legal affairs related to ignoring a workplace incident are much more burdensome than any competent investigation will be.
The easiest way to make a workplace incident go away is to hand over your obligations to an experienced investigative firm, such as LSC, and create institutional change based on the investigation's findings. In this way, an organization’s legal obligation to investigate is met, and decision-makers are focusing on the operation of the business, which is where their expertise lies.
If We Investigate, There Will Be Bad Press
This is an understandable concern, but news outlets prefer a “Bad Employer Did Not Investigate Horrible Thing” article over a “Professional Organization Conducted Uneventful Compliance Task” article. The reality is that there may be nasty rumors or coverage of workplace dysfunction; however, the processes inherent to an investigation reduce the gossip and the sense that a situation is so out of control that it is newsworthy. LSC conducts its investigations in the most legally private way. Working with an investigator to create information under the protection of attorney-client work product is an exceptional way to engage in damage control.
This Whole Process is Scary
Managers of organizations are sometimes uncomfortable with allowing an investigator to become so intimately aware of their affairs or allowing an investigator to control so much scheduling and work done on behalf of the company. Those concerns are reasonable and are why hiring a workplace investigator with an excellent reputation is imperative. Courts quickly analyze the “independence” of any workplace investigation to ensure that the investigators were not controlled or guided by a person or organization interested in concealing or coloring the outcome of a mandatory examination. Although it can be scary, it is imperative to give over the investigative process to your investigative experts.
LSC’s process may be unfamiliar to clients, but we know it well. We explain the steps to our clients, and our clients are always informed about our progress. Clients receive a daily update, and we are happy to debrief with our clients in the most appropriate way for that organization. In particular, LSC always provides a complete investigative debrief at the end of the interviewing efforts so that clients have the facts to consider as soon as possible, even before the investigative report is produced.
I Will Get Fired if I Have to Bring an Outside Investigator into this Company
Retaliation against an individual involved in reporting illegal behavior is itself illegal. That being said, investigations are not about terminating employment but rather determining the causes of criminal or inappropriate actions. If you acted outside of the law or a policy, engaging in the investigative process is your vehicle to explain to your employer why certain activities occurred. Ultimately, the decision to maintain or terminate someone’s employment is up to the employer, but it is extremely rare that a person proactively assisting an organization in meeting its legal obligations loses their job as a result.
I Will Have to Fire Someone
Terminating someone’s employment may be the most relevant result of investigative findings. If this particular issue prevents you from maintaining a safe and compliant workplace for the remainder of your organization, LSC is happy to assist or handle the termination of employees. It is appropriate to discuss these services at the inception of an investigation, but until there are final concussions made about the incident in question, it is premature to discuss who should be terminated or how that termination may occur.
We Do Not Want Some Investigator Snooping Around Here
As consultants and professionals, the investigators of LSC are exceptionally interested in maintaining the integrity of the companies we work for. We are both respectful and non-intrusive, whereas government investigators have no particular obligation to be aware of the organization's business needs or to respect the workforce. Further, hiring an external investigator means that you are hiring professionals to maintain confidentiality and create information that belongs to you, the employer. That same information will come out if a government force investigates a workplace matter; however, the government information would not belong to you and would not be covered by good confidentiality or privilege standards.
The sense that you do not want a stranger poking into company affairs is, however, customary and reasonable. This is precisely why it is essential to hire the most qualified individuals possible to conduct your workplace investigation.
Cite this article: Lynch, N. (2017). Top Questions from First-Timers about Hiring an Independent Investigator. Available: https://www.lynchlf.com/blog/top-questions-from-first-timers-about-hiring-an-independent-investigator/