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The Pandemic Changed How Companies Handle Internal Investigations

Oct. 25, 2021, 8:00 AM

The last 18 months have been quite a ride for employers. Between the call to arms of social justice movements, the inescapable (and oftentimes unhealthy) political discourse, and the chaos and uncertainty caused by a global pandemic, employers have been kept on their heels fielding the accompanying uptick in internal complaints.

In a recent webinar we hosted, we polled our audience of 1,200 people, and approximately 70% said they have seen internal complaints increase.

Internal complaints are not new to most workplaces, but the internal complaints now being voiced are palpably different. Indeed, the new wave of complaints seen by employers are more complex and nuanced, readily voicing concerns about systemic and pattern and practice discrimination which employers, in the eyes of the complainants, have perpetrated for far too long.

The stark reality is that these complaints cannot be met with, or resolved by, routine and rehearsed investigation practices. This article offers some helpful tools to ensure your investigation is thorough and effective.

Best Practices for Investigations

First, it is of utmost importance to select the right investigator. The days of selecting the next employee relations member in the queue or speed dialing your jack-of-all trades, go-to investigator are waning. While the aforementioned persons may be adequately equipped to conduct the investigation, employers need to be extremely thoughtful in identifying the investigator most adept at handling the task.

The right investigator will need to have a fundamental understanding of the political, cultural, and social shifts revolving around them as well as a keen level of discernment in how these factors overlay the concerns raised. And, in navigating these complex complaints, investigators must have the appropriate EQ (emotional quotient) to develop a connection with complainants/witnesses/targets so as to gather the information required to ensure a thorough investigation.

Second, while it is critical to conduct investigations promptly, in the new age of investigating nuanced and complex complaints, speed can oftentimes kill. Rushing through an investigation to meet a specific timeline can easily lead to overlooking important areas of inquiry and failing to analyze information received during the course of the investigation.

Thus, a proper balance of pace and careful, slow moving, discernment is necessary to critically assess the information provided by witnesses and make determinations regarding the facts fall within the scope of the complaint.

Third, communication remains paramount—especially where the complexity of these investigations may require a lengthy period of time to reach completion. Investigators need to remain cognizant that complainants who are not kept apprised of the status of the investigation may view a lack of communication as evidence of a sham investigation and take matters into their own hands via social media cancel culture. In addition, it is important to update employees as the investigation progresses so as to mitigate any risks of perceived or actual retaliation.

An Organizational Assessment Might Be Necessary

Finally, employers should know that an investigation is not always the final step because investigative results will sometimes determine that a single complaint actually stems from an ongoing, large-scale institutional issue left unaddressed.

For example, an investigation may uncover a history of employee concerns regarding perceived discriminatory practices, yet those concerns went unreported for years. In those situations, employers may want to strongly consider an organizational assessment.

These assessments provide an in-depth examination of an employer’s policies and workplace practices to determine the tangible impacts on corporate culture. These assessments are highly detailed and offer customized recommendations on a strategic plan for addressing large-scale perceptions and institutional best practices.

At the end of the day, workplace investigations (and organizational assessments) are very useful employer tools for addressing deficiencies, assessing company culture and morale, and defending against lawsuits.

Employment law is an ever changing space which requires a due diligence to remaining apprised of changes to ensure workplace compliance. In a similar vein, this new era of complaints constitutes a change in the landscape for which employers should prepare. A simple pivot in your practice can ensure that your process continues to run smoothly.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owner.

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Author Information

Andre’ Caldwell is a shareholder in Ogletree Deakins’ Oklahoma City office and co-chair of the firm’s Workplace Investigations and Organizational Assessments Practice Group. He regularly conducts workplace and internal investigations for clients locally, nationally, and internationally.

Monique Gougisha Doucette is a shareholder in the Ogletree Deakins’ New Orleans office and co-chair of the firm’s Workplace Investigations and Organizational Assessments Practice Group. She manages employment litigation and leads internal investigations of critical, and often sensitive and high profile, issues for clients.