Even in today’s environment, in which remote work has become the norm, festering allegations of workplace misconduct continue to pose a significant risk for employers across all industries and sectors. Any credible suspicion of regulatory compliance issues, harassment, discrimination, criminal activity, retaliatory conduct, or ethical breach requires a thorough workplace investigation that demonstrates the organization’s commitment to identifying and remedying such accusations with urgency.

The investigation should begin as soon as an employer learns about a complaint of wrongdoing. Each step must be handled with care to protect both the company and the parties involved. An investigation into potential workplace concerns should help the company identify whether any actionable conduct has occurred and, if so, what type of remediation would best address the issues the investigation uncovered. Investigators must carefully document each action, meticulously preserve all records, and critically analyze the findings to create a path forward.

Preserving Inquiry Integrity With Independent Investigations

When embarking on a workplace investigation, an employer must decide whether to conduct the inquiry in-house or engage the services of an independent investigator. Allegations of any workplace impropriety can expose the organization and its executives to damaging liability, and it is an employer’s responsibility to get it right from the start. Unaddressed workplace issues will continue to expose employees to potential harm. While an internal investigator — such as a member of the human resources team or the company’s general counsel — would have the benefit of innately understanding the corporate culture and the players involved, there are times when failing to seek third-party assistance can create insurmountable challenges down the line.

There are many benefits to hiring an independent workplace investigator, including avoiding bias or the appearance of bias, the ability to rely on resources who have dedicated time and a unique skill set, and improved employee willingness to speak freely when providing essential information.

Avoiding bias or the appearance of bias creates a more objectively sound investigation.

From an employer’s perspective, it also results in a defensible position for potential litigation. A legally defensible workplace investigation will be objective, leaving very little room for a judge or opposing counsel to question the investigator’s impartiality or motives. When a company opts to investigate internally rather than hire independent investigators to address allegations, questions may arise as to whether conflicts of interest or bias taint the investigation’s findings.

It can be especially problematic if the employee conducting the investigation, such as an HR manager, has witnessed the alleged conduct or been a party to it. The same complications may arise if an employee is tasked with investigating a superior or someone with whom they have a personal relationship.

Hiring a third-party workplace investigator to handle sensitive matters can preserve procedural fairness, which is especially important because a fair and just process begets objective and unbiased findings.

Relying on specially trained resources with dedicated time and a unique skill set.

While most in-house HR personnel grasp the basics of how to investigate allegations of workplace misconduct, they may also be responsible for recruiting talent, maintaining employee records, processing time sheets, and updating policies for employee benefit plans. The same goes for in-house legal departments, which are often also tasked with overseeing corporate regulatory compliance, negotiating contracts with vendors, and managing work outsourced to law firms. Moreover, in-house and outside defense counsel are ethically required to zealously advocate for their client, requiring them to cultivate skills often not best suited to an independent review.

Given workplace investigations’ gravity, it is unlikely that an internal resource will have both the time and the know-how to give an inquiry the attention it deserves. When a company brings an independent investigator on board, internal resources can continue fulfilling their generalist roles while the hired professional can exclusively focus on the business-critical investigation. Additionally, independent workplace investigators have unique insight derived from having completed numerous investigations before, and this experience also can boost defensibility.

Improved employee willingness to provide information.

A thorough investigation into allegations of workplace misconduct requires honest and complete employee participation. When an internal resource is responsible for fact-finding in this type of situation, fellow colleagues may be wary of telling the whole truth and nothing but the truth. While some may fear reprisal from management for revealing others’ misdeeds in the workplace, others may worry about their relationships with their peers.

By having an impartial third party conduct the interviews and other fact-finding exercises, employees may be more likely to be forthcoming with information they may have. With better data comes more effective solutions to any problems that may arise in a work environment.

Beyond the Private Sector: U.S. Military Mulls Independent Investigations for Assault

And the issue of independent investigations is not unique to the private sector. Late last month, a bipartisan group of senators spearheaded by Senate Armed Services Personnel Subcommittee Chair Sen. Kirsten Gillibrand (D-N.Y.) introduced legislation that would revamp how the U.S. military investigates and decides sexual assault cases, infusing independent investigation into a traditionally closed process.

The bill has garnered support from both sides of the aisle, including Sen. Joni Ernst (R-Iowa), a retired National Guard lieutenant colonel who is a sexual assault survivor. The impetus for the bill, backers argue, is that service members will be more likely to speak out about sexual assaults because they will not face the same fear of retaliation from their superiors and peers. In its 2019 Annual Report of Sexual Assault in the Military, the U.S. Department of Defense revealed that there were 7,825 sexual assault reports that involved a service member as a victim or subject, as well as 1,021 formal sexual harassment complaints, which was a 10% increase from the previous year.

In addition, a Pentagon panel created by Defense Secretary Lloyd Austin complete sea change on how these cases are currently handled and remove these matters from the chain of command, supplanting military commanders’ edicts for independent judge advocates’ decisions. The judge advocates would work with a special victims prosecutor, who would be responsible for determining whether to court-martial individuals accused of sexual assault or harassment.

It remains to be seen whether these initiatives will lead to tangible military change, but these are groundbreaking first steps.

Conclusion

Hiring an independent workplace investigator, like the professionals at Tribu Partners, can facilitate seamless investigations that prioritize thoroughness, creativity, flexibility, and defensibility. Third-party inquiries can help employers and their organizations avoid the pitfalls that commonly plague investigations that are conducted in-house.

If you have questions about whether an independent workplace investigation can benefit your organization or any of the other services Tribu offers, contact us today.