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An investigation is inevitable: Now what?

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Recently, readers wrote in to attorney Joseph L. Beachboard of the law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., about what to do when a workplace investigation is a sure thing. Here's how he responded.

Q. Two employees are in a dispute over stolen property in one of my office buildings. I don’t think they can solve the issue on their own, so I am considering hiring an outside investigator to look into it. What qualifications should I look for in an investigator?

A. When engaging in a workplace investigation, you can choose from inside personnel (HR, the legal department, security, etc.) or external personnel (an outside attorney, accountants, security personnel, etc.). Either way, your investigator(s) must:

  • Have the ability to understand the purpose and the issues (both practical and legal) of the investigation
  • Formulate appropriate follow-up questions, especially when new facts at issue arise during the interview
  • Have knowledge of company policies, procedures, practices, and corporate culture
  • Possess effective interviewing skills, specifically in view of the personalities and background of the potential interviewees (i.e., ability to develop rapport, press for admissions and understand the interviewees)
  • Have credibility (i.e., no conviction record, no history of termination for misconduct or incompetence)
  • Be impartial
  • Not act as an advocate during the investigation
  • Have the ability to take thorough, accurate notes
  • Have the ability to maintain confidentiality
  • Be effective as a witness in a jury trial.

Q. We need to conduct a workplace investigation, and an HR manager has expressed interest in taking on this duty. What are some advantages and disadvantages to using internal investigators?

A. The first advantage offered by internal investigators is their low cost, as they typically are already on your company’s payroll. Speed of deployment is also an advantage, because they are already familiar with your organization, its procedures and goals. They may already be located in or near the site of the complaint or dispute.

Because of internal investigators’ proximity to the workplace and its employees, they can also have improved fact-finding abilities and can often cause less of a disruption in the ordinary course of business.

Although utilizing an internal investigator has its benefits, there are also disadvantages. Among these is the fact that some investigators cannot remain impartial during the investigation, as they could be interacting with friends and co-workers.

Another disadvantage is decreased efficiency. Unless an organization is large enough to dedicate a sufficient number of employees to investigate, the complex issues of an investigation plus employees’ regular duties can prove too heavy a workload. Yet another drawback of using in-house personnel is that employees’ knowledge or training may be too narrow to achieve the necessary fact-finding requirements.

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