“Neutral” Investigators Should Disclose Their Responsibility to Resolve Conflict: Fact-finding versus Fact-gathering

Workplace and school investigators often begin investigation interviews by describing their role as a “neutral and objective fact-finder.” The primary point to make is that the investigator is not biased. More than anything, objective and systematic interview process demonstrates the investigator’s intent to first understand each participant’s side of the story. That’s a good thing, but it is not the whole story either. As conflicting information may develop from different sources, so does the investigator’s obligation to resolve those conflicts. (I like to say that the degree of obligation to resolve conflict varies directly with the severity of the alleged misconduct.)

Investigations charge the investigator with evaluating all the evidence toward reasoned findings that evaluate conflicting information around suspected or alleged misconduct. The “whole story” is that, strive as the investigator should to understand individual perspectives during early fact-gathering, making findings of fact to conclude the process often means that someone’s version of events is deemed most persuasive. Sometimes, though, an investigator or manager is engaged to conduct “fact gathering” only. There, conclusions as to whether it appears “more like than not” that alleged misconduct occurred are omitted. Credibility analysis and “weighing” of the evidence, too, may be excluded.

Whether the investigator will make findings of fact versus simply gather facts by taking witness statements and collecting relevant evidence is a huge distinction – and one that merits attention in the interview context as part of the investigator’s introductory comments. (Confidentiality expectations, as may be applicable, and retaliation prohibitions are other common “ground rules.”) My suggestion is to clarify the ultimate “fact-finding” purpose when addressing an expectation that participating employees be truthful. Where authentic “he-said, she-said” scenarios exists, the only thing an investigator can be certain of is that someone is not telling the truth. That backdrop helps explain an expectation of truthfulness in investigation interviews and allows the investigator to impart that he or she has a responsibility to resolve conflict in good faith after properly evaluating the evidence.

Caselaw support for an employer’s obligation to resolve conflicting employee accounts of misconduct through a thorough investigation that supports good-faith decision-making comes from a recent California Court of Appeals decision. (See Mendoza v. Western Medical Center of Santa Ana, 222 Cal. App. 4th 1334, 166 Cal. Rptr. 3d 720 (2014).) In Mendoza, the court’s identification of investigation defects, like interviewing the complainant and respondent simultaneously with an inexperienced investigator, underscores that workplace investigations are considered integral to an employer’s exercise of reasonable care. A snippet from oral argument included in the decision makes the central point addressed here (Mendoza at 14, n. 4.):

“… defense counsel asked (perhaps rhetorically) just what employers were expected to do       when faced with a scenario in which two employees provide conflicting accounts of inappropriate conduct.

    “Our answer is simple: employers should conduct a thorough investigation and make a good faith decision based on the results of the investigation. Here, the jury found this did not occur.”

Importantly, too, don’t underestimate the value of fact gathering alone. Skilled fact gathering can enable your most trusted counsel to assess the matter without getting entrenched in an investigation process directly.  The necessity of a formal investigation (with “fact-finding” and all) is not always clear at the onset. Initial fact gathering is always a precursor and might reveal that a formal investigation is not necessary. Investigations are inherently disruptive. Skilled investigators make investigations as least disruptive as possible. HR best practice is to avoid unnecessary investigations. When investigations are necessary, adequate investigation demands taking responsibility to resolve conflicting information in good faith.

Promoting the Investigations Profession

The Denver Local Circle of the Association of Workplace Investigators meets Thursday, September 3rd from 4:30 to 6:00pm at Liz Rita’s office -2401 15th St., Set 300. After socializing, we will share and discuss investigator engagement agreements. This is a great opportunity for internal investigators to learn more about AWI and engaging third-party investigators. Email Liz or me to register: liz@wpi-workplace.com or mflynn@emfig.com. This invite modifies the following earlier post.

The expectation of appropriate investigations at workplaces and on campus has required employers and schools to build internal human resources to meet the need. Frankly, all situations that need investigation do not justify retaining an outside investigator. These facts make associations and resources that promote the profession to all levels of experience and would-be investigators invaluable. I am a sustaining member of the Association of Workplace Investigators. I serve on its Guiding Principles and Member Benefits committees and work with my colleague Elizabeth Rita to convene the AWI Denver Local Circle. Check out www.aowi.org to learn more about this excellent organization and it valuable resources. The Denver Local Circle meets bi-monthly and non-members are welcomed to attend to learn more. Just contact Liz or me to register.

The Workplace Investigations Group led by Lorene Schaefer is another excellent resource. WIG offers a national directory of investigators with at least ten-years experience.

There are many decisions to make toward conducting an “appropriate”investigation. This is a developing profession that is well served by individuals and groups dedicated to promoting best practices and investigation integrity.

Welcome to EMFIG.com

Mark Flynn workplace investigator attorneyFor my first entry, I want to say a little about my business and how it came to be – kind of a vision statement too. To start this endeavor I left my job; my very stable, fine job with an outstanding organization. I recognized that I was roughly half-way through my career. I asked of myself, “What do I want to do from here?” “What example do I want to make for my family?”  I want to run a good business that delivers quality work through exceptional internal and external customer service and continuous improvement. I want to focus on workplace investigations because it is valuable work I enjoy, and I believe that I am good at it. Whatever the underlying issue, what ultimately makes a good investigation is the intent to get it right. That means getting to the truth of the matter. Of course, we all have our individual perspectives on what is “true,” which will be a recurring theme in my posts. For purposes of this post, I rely on one of the few essential truths that most if not all people agree on: “Time flies.” (I will add my personal addendum here that, like gravity, the speed at which time flies speeds up over the span of our lifetimes.) From there insert, “Carpe diem,” “Find your contentment” or whatever works for you.