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(Editor’s Note: Today’s article is brought to you by our friends at Case IQ, a leading provider of case management solutions that helps companies manage the process and workflow of investigators collecting and analyzing information related to a case, with the goal of resolving issues, managing risk, and identifying opportunities for improvement. Enjoy the read!)
One of HR’s responsibilities is to manage workplace investigations. Some people might think that having nothing to investigate is the ideal situation. And I get it. Investigations can signal there’s a concern or a problem that needs to be addressed. It would be great if the issue never happened in the first place. However, another way to look at it is that investigations give us an opportunity to fix something. And put the pieces in place so it will not happen again.
When we’re presented with a concern that requires investigation, a question we need to ask ourselves is “Who should be the investigator?”. Just because we’re in HR doesn’t mean we should always be the person who investigates. It could make sense to engage with an outside third-party. For instance, there are consultants who specialize in workplace investigations and some law firms will conduct investigations for their clients.
Reasons to Engage with a Third-Party Investigator
Here are a few scenarios where it might make sense to use someone else as an investigator.
We don’t have the proper training. When it comes to training, there are two things to consider. First, do we have the proper training to conduct investigations? If you’re looking for training or a refresher, the Society for Human Resource Management (SHRM) offers a one-day Leading Workplace Investigations seminar. You can also earn SHRM’s Workplace Investigations Specialty Credential.
The other aspect to consider is knowledge of the topic. For example, someone might be qualified and experienced to conduct a harassment investigation but not have enough background knowledge to investigate allegations of fraud.
It would be perceived as a conflict (even if it’s not). If we want the organization to respect the process and outcome, then sometimes we have to consider perceptions. This does not mean we’ve done anything wrong. For example, if we’ve recently conducted an investigation that included a witness (let’s call them Leonard) and now there are concerns about Leonard, it might make sense for HR not to lead the investigation.
It involves a senior executive or board member. There are positions in the organization that, should they become a part of an investigation, it might be better to have a third-party conduct the investigation. It’s possible that HR has a reporting relationship to the executive, or they work with board members on projects.
There’s additional risk. Okay, how do I say this … some investigations sound very complex like they are destined to go to court from the beginning. This doesn’t mean we’re supposed to change our process. But it’s possible based on the nature of the investigation that we would consult legal counsel early and regularly.
If that’s the case – that we would be working with legal counsel throughout the process – then we need to ask ourselves if it would be better to have a third-party conduct the investigation.
We’re just too busy. Investigations take time and they need to be a priority. If the HR team has other priorities – that cannot be shifted to another team or delayed – then using a third-party to investigate could make sense. An example might be HR is working on annual open enrollment. It’s a busy time, employees have lots of questions, and the timeline can’t be altered. It’s hard to find someone else to conduct open enrollment, so we find someone else to handle the investigation.
Managing a Third-Party Investigator
Now, if the decision is made to use an outside third-party that doesn’t mean we can sit back and forget about the investigation. It simply means our role is different. Here are a few things we need to do even when someone else is conducting the investigation.
- Document the reason that you’re using a third-party in case you get asked questions later. This is a great use of your case management software. You can document the investigator selected and why you chose them. In fact, it could be interesting to track investigations by the investigator to identify trends.
- Communicate to key individuals who will be conducting the investigation and ask for their cooperation. The last thing an outside investigator needs is someone undermining the process. Part of our role is ensuring an ethical investigation. In Season 3 of The HR Bartender Show, I spoke with Meric Bloch, strategic advisor for Winter Investigations, about conducting ethical investigations. If you haven’t already, I hope you’ll listen to the episode.
- Provide the third-party investigator with information about the situation. Also provide them with knowledge of the company and the organization’s investigation process. They might need information about policies, procedures, etc.
- Be available to answer questions. And request regular updates from the investigator.
- Assist with facilitating the final recommendations. While the investigator might offer some suggestions or recommendations, the organization must ultimately decide how they will handle the matter. As HR, we have historical knowledge and working relationships within the organization.
As I mentioned at the beginning of this article, one of HR’s responsibilities is to manage workplace investigations. That doesn’t mean we have to always conduct them. It could make sense to utilize the services of a third-party. Then HR can manage the process.
P.S. If you want to learn more about the state of workplace investigations in today’s business environment, I hope you’ll listen to this panel discussion with me, Meric Bloch from Winter Investigations, and Tom Fox with the Compliance Podcast Network. We spend some time talking about third-party investigators and HR’s role in the process.89