Welcome to AllVoices Experts, a series discussing emerging trends and technologies shaping the Future of Work. We’re on a mission to create safe, happy, and healthy workplaces for all, and we’re excited to learn from experts who share our mission.
Rebecca Speer has spent a career helping organizations prevent and manage workplace misconduct. A sought-after investigator, she has conducted hundreds of investigations for top employers across industries, with a focus on allegations affecting senior management. Rebecca has testified about her own investigations, served as an expert witness, and spoken widely about workplace investigations and employee relations practices more generally. Rebecca also has consulted with Legal, Compliance, and HR leaders who share the ethos that a company’s approach to preventing and managing workplace misconduct indelibly drive organizational culture. In 2021, Rebecca will introduce Upquest Leadership, a transformative online platform that will empower this generation of leaders to better understand damaging workplace behavior and to champion a positive, ethical, and inclusive workplace through their everyday actions and decisions.
As an investigator, it’s important to get an investigation off to a positive and effective start. Once I’ve gathered preliminary background information, my first substantive step becomes interviewing the employee who raised the concerns under investigation.
I have multiple objectives for this interview. Principally, I become laser focused on holding a thorough and comprehensive discussion so that I can gather facts to understand issues and concerns from that employee’s perspective. In addition, the interview serves as an important opportunity to explain my role and the investigative process, and to set ground rules; I want to demystify the investigation, to place the employee at ease, and to gain the employee’s trust in and cooperation with the process. In turn, the results of that interview will help me to effectively plan my investigation – to decide whom I’ll want to interview and the information I’ll need to gather from other sources.
At that early stage, coordinating with me, the organization will inform employees, as needed, about the investigation and will make decisions regarding any interim measures it might need to implement during the investigation, such as placing the subject(s) of the complaint on a paid administrative leave.
Perhaps a nuance, but I don’t see my role as that of “substantiating” a report but of “evaluating” it. I undertake to gather as much information as reasonably possible in an effort to achieve the best understanding of a complaint and the context in which it arose. I derive that information from witness interviews – sometimes a few, sometime many – and from a careful review of data and documents, such as emails germane to the issues at hand. In the end, that objective and thorough investigation will reveal, or not reveal, information sufficient to support or “substantiate” a report or allegation.
That supporting or substantiating information can take various forms. Often, it consists of witness accounts that remain consistent with and corroborate assertions made by a reporting party. Sometimes, it consists of data from personnel files or email correspondence. At times, it consists of a lack of data to support alternative explanations offered by the subject of an investigation. Supporting or substantiating information will remain highly variable depending on the issues under examination.
Investigators often face conflicting accounts, not only because people sometimes lie (they do!) but because people will experience events from different vantage points or acquire different perceptions and memories of them – perceptions and memories that can differ in quality, reliability, completeness, and accuracy. Sorting through, understanding, reconciling, and evaluating discrepant accounts remain central to the investigators’ role: Indeed, that’s where the rubber hits the road.
When faced with conflicting accounts, the investigator needs to double down on the fact-finding process – to continue data-gathering until all reasonable avenues of information have been explored. The information gathered typically will include an accumulation of witness accounts and data gleaned from emails and other documents. Ideally, a robust process brings the investigator to a point where a conclusion about the facts can be reached with confidence. A rigorous investigation might ultimately produce, for instance, multiple witness accounts that support or corroborate a particular version of events or that give credence to an allegation. It might reveal information that allows the investigator to judge witness credibility against multiple factors.
Ultimately, when faced with conflicting accounts, the investigator must rigorously proceed and then, at the end of the day, must reach a conclusion by judging the facts against a preponderance of the evidence standard. This standard means that the investigator will reach findings based on a review of all the information gathered and an assessment of whether sufficient evidence exists to render alleged events or circumstances “more likely than not” to have occurred.
That’s a great question, and an extremely important one. As a rule, people involved in an investigation – whether a reporting party, a subject, or witness – will find it difficult to trust a process that they don’t understand or that remains veiled in secrecy. Therefore, it’s important during an investigation to provide transparency while carefully balancing the compelling need for confidentiality.
Striking that balance isn’t always easy, but it’s achievable. To me, promoting transparency begins with explaining my precise role and my investigative process to the reporting party, subject, and witnesses. I do so in a general or “high level” way. For instance, I might describe my approach to gathering information and explain my ultimate objectives; I clarify my role as an objective fact-finder. This effort helps employees understand my role and what to expect from the investigation. It goes a long way towards demystifying the process and allowing me to build rapport with employees.
As the investigation proceeds, I often will find myself balancing transparency against confidentiality as I field questions from the people I interview. I stay firm on the information I may not share while endeavoring to promote trust in the investigative process. For instance, when a reporting party or subject asks – as they commonly do -- whom I’ve interviewed, I don’t provide that information; however, I will reassure them that I will interview as many people as the investigation requires. I also will solicit their suggestions about potential witnesses.
During an investigation, I will walk this balance between transparency and confidentiality in a myriad of ways. In doing so, I remain focused on requirements of confidentiality while also thinking in terms of the information I may share – particularly information that can help to explain the investigative process and cultivate a trust in it.
It’s imperative for many reasons that go beyond any one investigation that a company promotes an objective and fair investigative process through deliberate and mindful efforts.
A key step involves ensuring that the person conducting the investigation is and can be seen as objective. Doing so often requires outsourcing investigations of senior management. With matters properly handled in-house, promoting neutrality will entail assigning an investigator who doesn’t have a close working relationship with key parties to an investigation. Other strategies for promoting objectivity include providing training to investigators in how to conduct a rigorous factfinding process and ensuring that investigators remain aware of biases that can affect the fact-finding process. It’s also important for in-house investigators to fully appreciate their role as objective fact-finders.
Finally, companies can promote objectivity by giving investigators the time to conduct an adequate investigation and the leeway to reach whatever factual conclusions an investigation demands. With a fair, effective, and objective investigation in play, companies must allow “the chips to fall where they may.”
The most common roadblock by far is a reluctance by a witness to be forthcoming during an interview. Not uncommonly, feelings of distrust or fears of retaliation – whether specific or generalized – will threaten to shut a witness down. The only way around this roadblock is to build trust bit by bit, provide assurances against retaliation, and impress on the witness their critical role in helping to ensure an accurate fact finding.
The most common mistakes I see are failing to conduct an investigation at all or conducting an inadequately thorough investigation. Sometimes, due to a lack of training or experience, an investigator – however well-intentioned – will fail to pursue relevant lines of inquiry. They’ll jump to conclusions and overlook different sides of an issue. Or, they’ll fail to conduct the analysis required to fully and accurately evaluate the facts.
In addition to providing the degree of transparency possible about the investigative process and taking other steps to mitigate fears and elicit trust, it’s important to help a reporting party – as others interviewed—to feel heard and understood. This doesn’t mean expressing sympathy or purporting to “believe” a reporting party. It means, quite simply, remaining fully present and curious during an interview; it means listening intently and repeating back to the employee what you have heard and understood. It means asking the right questions – including the tough ones – effectively and, where important, with sensitivity. And it means remaining available to a reporting party after an interview to accept additional information and to engage in further discussion.
While it might be nearly impossible to make a reporting party feel fully “comfortable” with an investigation, it’s my belief that helping reporting parties to feel heard and understood, and establishing myself as a thorough, caring, and objective factfinder, can go a long way in building trust and comfort in the investigative process – irrespective of where the facts ultimately land.
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