Think you can just hand off an external investigation and be done with it? Not so fast. Maria Walker of Oppenheimer Investigations Group shows why proactive planning and clear protocols are essential for a smooth external investigation.
Investigations are an important, and often necessary, step for organizations to take toward addressing employee concerns. Given the wide range of possible employee concerns that can arise, including (but not limited to) those regarding harassment and discrimination, there will be times when an organization may need or want to hire an external investigator. Such instances can include concerns pertaining to someone on the human resources team (potentially posing a conflict of interest for HR to carry out the investigation) or if the internal bandwidth does not allow for a timely and thorough investigation.
Though the term “external investigation” may suggest that the matter can be delegated in its entirety to the external investigator, there are steps an organization can and should take to ensure a smooth and timely investigation. This involves a series of preliminary decisions, including designating a point of contact and providing applicable organizational protocols. It also involves shepherding the employees involved in the investigation, ensuring they have a chance to meaningfully participate. Thinking ahead can help reduce the cost of an investigation by avoiding costly and unnecessary delays. For example, an investigator having to reschedule an interview when they realize the employee does not have a private place from where they can join the interview.
Internal contacts and notices
To start, the organization should determine who will be the primary point of contact for the external investigator. This contact should be someone who has the authority to make informed decisions on behalf of the organization, including decisions regarding the scope of the investigation (meaning what the external investigator is tasked with investigating).
In addition, it is not uncommon that new or unrelated issues come up during an investigation. Because the organization may be required (or might want) to address these concerns separately or as part of the current external investigation, it is imperative that the external investigator has a clear point of contact with whom to report these issues as they arise. In some cases, the organization may choose to have their legal counsel be the primary contact for the external investigator. Regardless of whom the external investigator’s point of contact will be, it is important to make a timely determination as to who it will be to avoid unnecessary delays.
Organizations should also try to predetermine who will be the investigator’s contact for scheduling interviews. This can be the same or a different person than the primary contact. This individual’s role includes providing notice to the parties (and witnesses) that the investigator chooses to interview as part of the investigation. One best practice would be to select someone who other employees will be responsive to and who is uninvolved in the issues that are being investigated. Employees may dismiss “out of the blue” emails they receive directly from the unknown external investigator and are much more likely to be responsive when the request comes from inside the organization.
This brings up another preliminary issue that should be considered: what language to use for investigation notices to the parties and witnesses when requesting (or requiring) their participation. Typically, legal counsel or human resources personnel can provide this language. Alternatively, the investigator may also have some sample notice language that can be tailored to the organization’s practices. Thinking about these measures in advance will save time during the investigation.
Anticipating and responding to potential employee needs or accommodations
Organizations should also try to reduce or eliminate potential obstacles to employees’ meaningful participation in investigations. This can present itself in a variety of ways. For example, if an employee who is likely going to be interviewed for the investigation indicates or has previously indicated that they prefer to communicate in a language that is not English, the organization should consider offering third-party interpreter services for the investigatory meeting. As another example, if an organization is aware that the majority of their workforce does not have access to a computer at home from which they can videoconference with the investigator, the employer should plan on accommodating in-person interviews (or videoconference meetings) in a private office space.
Employers should not make sweeping assumptions about their employees but rather should anticipate any unique requests and accommodate those needs.
Another practical issue that comes up frequently in investigations is whether the organization wants the external investigator to record the interviews. This is a decision typically left to the organization and one they should notify the external investigator of before interviews start. Taking it a step further, interviewees may refuse to be recorded or may request to record when the investigator is not doing so. Discussing with the external investigator how you would like them to proceed in these scenarios can help prevent delays in completing interviews.
Other issues that come up frequently pertain to the availability of parties or key witnesses. The organization should proactively consider how they would like to move forward if one of the parties is unavailable (such as on leave) or unwilling to speak to the investigator. This requires balancing multiple interests, which will likely require advice from legal counsel. Nonetheless, thinking about this ahead of time and keeping the external investigator informed of any changes will help the investigator make timely determinations as to their investigation plan.
Overall, if an organization takes appropriate steps to prepare for an investigation and thinks ahead to issues that could arise, it goes a long way in reducing delays and ensuring a smoother investigation. Although communication between the investigator and the organization is an important part of the investigatory process, it is of no benefit to either to have to slow down the investigation because of foreseeable issues or questions that could have been discussed from the outset. Instead, the investigator and the organization should consider and discuss the issues discussed below proactively to help save on cost and time.
Maria Walker is an attorney at Oppenheimer Investigations Group. She has led or assisted on at least 60 matters since joining OIG, including both investigations and climate assessments. Maria conducts investigations and climate assessments in both English and Spanish, and also assists other attorneys in the office with Spanish-language cases. Maria also has experience in providing investigation and other training for employers. 
