"Neutrality" is the name of the game. In the recent California case of Nazir v. United Airlines, Inc., the court gave strong cautionary advice about choosing the right workplace investigator.
The Nazir court raised the point that this particular employer (United Airlines) had extensive rules and policies about the investigation of employee complaints. One of United’s policies stated that if “there is any reason you would not be perceived as an unbiased investigator, choose another investigator.” In the Nazir case, a company management employee (who had some prior negative interactions with the complainant in the workplace) took the lead in conducting the internal investigation. He also engaged a co-employee to assist him in the investigation; however, this "assistant investigator" described himself as a labor relations person, who had been assigned to assist the lead investigator in the facilities maintenance department. The assistant investigator attended most staff meetings in the lead investigator’s department and considered the lead investigator to be “an internal customer” of his, that is, a person he "served", according to the Nazir court.
Based on the underlying facts the Complainant alleged against the lead investigator, the Court found that the "lead" investigator was a person "who at least inferentially had an axe to grind" with the Complainant. Further, the "assistant" investigator was someone who worked in a capacity of "serving" the lead investigator; thus, the Nazir court held that "such an investigation can itself be evidence of pretext. . . . [and] such investigation could “exploit a disciplinary process predisposed to confirm all charges.”
The Nazir court juxtaposed the two investigators (described above) against the investigator used in another California case, Silva v. Lucky Stores, Inc. (1998). In the Silva case, the investigation was "by a well-trained human resources representative, who had no connection with the accused employee. The investigator carefully followed Lucky’s written policy, and interviewed no fewer than 15 employees during a month-long investigation. And in doing all that, the investigator asked, “relevant, open-ended, non-leading questions.”
How do you, as an employer, avoid this problem?
- If you are going to choose a company employee to conduct the investigation, in lieu of going to an outside investigator, be sure to pick someone who has never been involved in any prior negative incidents with the Complainant. Further, the investigator should not be anyone who "witnessed" any of the incidents alleged by the Complainant because he/she is likely to be automatically biased.
- Select an investigator who is not in the Complainant’s "chain of command"— either up or down. If the investigator reports to the Complainant, the investigator’s neutrality is compromised. In short, you cannot investigate your boss without worrying that you can be fired if you make findings against your boss. Similarly, even where the accused employee reports to the investigator, a supervisory investigator may be inclined to bury facts under the rug because the supervisor may not want to have his supervisory/management skills tarnished by a finding that a bad situation was allowed to occur or fester under his/her watch. On the other hand, a supervisor who runs a great department with no employee problems is looked upon favorably by upper management.
- In short, you want someone who is far enough from the situation to be impartial and who has experience investigating these types of issues.