The Network in the News
Conducting Global HR Investigations
January 25 2013
By Katherine Cooper Franklin and Tahl Tyson, Compliance Week, January 25, 2013
When a situation arises requiring HR to launch an investigation, it is often a crisis. Reacting without forethought in the heat of the moment can lead to rushed, unplanned and ultimately less-effective investigations that can make the situation worse. Diving directly into interviews is a common but critical mistake; interviews are essential investigative tools, which must be strategic and well planned to be effective. The following practical steps will help you use interviews effectively to further investigation goals, consistent with compliance requirements and best practice.
1. Be prepared: Before conducting interviews, first obtain and review any preliminary evidence and documentation, e.g., personnel files, emails, etc. And even before obtaining or reviewing any such evidence, particularly if it involves monitoring or reading communications, consider whether it was or can be legally obtained in the country where it was located or where you may want to use it against an employee in a disciplinary proceeding or termination. Data privacy laws are strictly observed in some countries, and violating them might not only allow a wrongdoer to escape consequences, but turn the table legally and put the company in the wrong. Find out what other requirements you must observe to ensure that information obtained from interviews does not become the “fruit of the poisonous tree” i.e. that it might not be legal to use it in a disciplinary process, and consider how and whether you might want to modify your approach.
Preserve relevant evidence. For example, secure computer data, and memorialize interviews in notes signed by the interviewee, in accordance with any local legal requirements. For example, although in the US it is common practice for lawyers to draft statements which people then agree to and sign, this is illegal in some places and the individual must have written the statement by themselves.
Prepare an outline of the questions you will ask and determine what order you will question the witnesses. Use the outline as a checklist rather than a script, so that you are covering all relevant areas. It is also important to determine in what order to do the interviews and whether they should be done in person, by telephone, or Skype.
2. Be Thorough: To ensure thorough questioning, use the “funnel technique”: start with open- ended questions like, “Tell me what happened?” Then break down each answer into separate funnel lines of questions, asking, “Who, what, when, where, why.?” At the end of each funnel, the interviewer needs to end with a “close the door” question like, “Is there anything else?” Also helpful for closing the door is a wrap-up question like, “So I heard you say A, B, C, D. Do you want to add anything else to your answer?” Be patient. Openended questions can often trigger long answers. Let the interviewee answer your question without interrupting and listen actively. When the interviewee tells you something important, do not go back to your outline to ask the next question, but use your active listening skills to follow up on what was just said.
3. Go in without bias: Another challenge for HR investigators, who often know the parties involved, is to set aside preconceived bias and conduct the interviews based on facts without assumptions. An investigator must take off his or her “HR hat” and put on “the investigator hat”, which means setting aside the business partner role and personal knowledge, and proceeding with neutrality to gather the facts without bias and without emotion.
Additional Considerations to Think About in Advance
Be alert to employee rights in interviews, and consider in advance how you might address them. This may require country and company cultural considerations as well as legal. For example, what if it appears that an employee may be implicating themselves in serious criminal conduct in the interview? What are the choices and obligations you have, and who should be making those decisions? If there might be disciplinary consequences, you may be required to provide advance notice inviting the employee to the interview and permitting them to have a companion present. For international investigations, consider whether you sufficiently understand the culture to effectively “read between the lines” and understand what the witness is telling you—or not telling you—including through body language.
Like many tools, interviews are effective if wielded more like a scalpel, with planning and precisions, than like a club wielded in haste. If you consider these types of points before and as you proceed with your interviews, your investigations will be that much more effective.
OCEG ROUNDTABLE PANELISTS
Carole Switzer (Moderator), President, OCEG
Jimmy Lin, GRCP, VP, Product Management & Corporate Development, The Network
Katherine Cooper Franklin, Shareholder, Littler
Tahl Tyson, Shareholder, Littler
Conducting Global HR Investigations
Switzer: Generally, we refer to investigations into employment-related concerns such as discrimination or retaliation as HR investigations. Does this mean that all such investigations should be conducted by the Human Resources staff? When should inside or outside council be involved, and who should make that determination?
Franklin: It all depends on the type of allegation. Most discrimination and retaliation-related claims are typically conducted by HR and not by legal counsel and without attorney-client privilege, as the investigation and the report may be used in subsequent litigation or to respond to an EEOC claim to prove the company took reasonable steps to correct harassment or to prove its affirmative defense. On the other hand, if it’s a high-risk claim or involves criminal conduct, an attorney should definitely be involved and the investigation is usually run under attorney-client privilege.
Lin: Most investigations are multi-faceted, so make sure to involve the right people from the very beginning. This can vary depending on the organization and the structure of the HR function. Often, the type of investigation, the severity of the issues involved, and the legalities of the incident being investigated will determine whether the investigation can be handled in-house by HR, legal counsel, and/or compliance case managers, or whether an outside investigative party should be consulted. The legal function within the organization can help analyze the risks posed by reported concerns, while compliance can help make sure future issues are mitigated. HR might lead the effort, but it has to be a collaborative approach. Everyone must be aware of what’s involved and agree on an approach that best defends the organization while remediating and resolving the issues.
Tyson: In an international context, where attorney-client privilege is desirable for all or part of an investigation, it is important to consider how the rules on privilege may vary from country to country. Certain types of communication, for example those involving competition law in the EU, will not be covered by privilege if the lawyer is in-house counsel, but only if he or she is an outside lawyer. Another point is that there may be legal procedural requirements for investigating matters e.g., where an employee is asked to incriminate himself or herself, an internal hearing may be required. This type of process is often within the particular expertise and purview of local HR.
Switzer: What is the typical pathway for intake of HR issues and the determination for what level of investigation is required? Where do people make mistakes in this process?
Lin: First of all, make sure to have the adequate and correct channels for intake such as phone, Web, and trained managers, and promote those channels internally. It’s important to make employees comfortable that issues will be followed up on and addressed in a timely manner to give them confidence that you will do it right. Proper escalation procedures are essential, as is follow-up communication. Every organization is different, but a threshold must be established that says that, at a minimum, this action must occur. Often, a mistake can be seen as not taking an issue seriously. You don’t know what or who is involved until you dig deep, and if you assume it’s a superficial issue and do not perform proper investigation steps you might never uncover the root cause. Make sure your investigations follow a consistent, efficient process so that the organization can remain confident that all types of issues are properly addressed and addressed consistently across the enterprise.
Tyson: Be aware that there may be different legal requirements and cultural practices in the different jurisdictions where a multinational company employs people. In France, for example, it is both legally and culturally correct to raise certain types of issues first with the line manager. For example, issues unrelated to financial misconduct such as a harassment complaint should not be channeled to a central hotline. Instead they should be raised with the manager (unless that individual is engaged in the alleged harassment), or with HR.
Franklin: One of the biggest mistakes in companies’ processes is that employees report HR-related issues to managers and managers don’t report to HR and the claim doesn’t get investigated or gets investigated too late or inappropriately by a managers. It is imperative to train managers to report to HR always so HR can make the decision on who should investigate and when and how.
Switzer: Investigations of all types take place within organizations on a regular basis. What, if anything, is different in the way that investigations into employment-related complaints or issues are conducted, from investigation into other types of concerns?
Franklin: When conducting HR investigations, remember that later they may be used in litigation to prove the company took reasonable steps to address the inappropriate behavior. Caution must be taken when HR writes reports and takes notes which might be used as evidence. So, for example, reports should contain facts not conclusions. It is a mistake to form an opinion that “harassment occurred” as that is a legal conclusion and should be left to a trier of fact. I can’t emphasize enough that the report should contain only facts not legal conclusions or opinions.
Lin: Employment-related issues usually occur because of a deviation from the organization’s code of conduct or standard corporate policies (sometimes reflected in the employee handbook). As such, these investigations follow an established procedure for dealing with such matters, and it’s important that any corrective action or remediation procedures are documented and followed. Often, incidents that directly contradict the code of conduct can be most adequately dealt with internal to the organization, either at the department level via remedial training or counseling, or at the organizational level up to and including termination. However, if the report pertains to an incident which could be considered criminal, escalation must take place so that each involved level of the organization—departmental, HR, legal, etc.—understands and follows the protocols required to remand the incident report to the proper outside authorities. This is necessary to protect the organization, including those parties adversely affected, and ensure its defensibility should legal actions be brought against it.
Tyson: Any investigation in a company that may result in disciplinary action against an employee is an employment investigation. As such, they must be conducted with an understanding of what investigative process is required by any internal rules, collective bargaining agreements, and external laws and regulations that are implicated. The employment laws of many countries outside the U.S. protect employment rights as civil and human rights, and require rigorous process and evidence, as well as proportionality between the offense and the consequences before a worker can be terminated. So any investigation must incorporate a process that ensures applicable employment law requirements are understood and complied with in order to take effective action, which may include termination.
Switzer: In the illustration accompanying this roundtable, trampling on the evidence is included as one of the pitfalls to avoid. What can be done from the starting point where issues are raised in any of many intake pathways, through triage to determine the nature and severity of the issue, and during the ongoing investigation to ensure that evidence is appropriately preserved? Are the requirements different in different countries?
Tyson: In any complex or international investigation, having a good process for effective teamwork is key for both issues. It is often a case of not knowing what you don’t know, so effective teamwork means that each person with a role to play in an investigation understands the expertise of others on the team, and that there is transparency and communication across the team. For example in the EU the concern may be properly obtaining evidence as well as then properly preserving it. The IT member of the team based in the United States must be able to recognize that anything IT-related involving countries outside the United States should be conducted with the support of the team legal adviser and/or local IT. Once crucial evidence is badly obtained, it is almost impossible to un-ring that bell and be able to use it effectively after the investigation, for example proactively in a termination, or defensively in subsequent litigation.
Franklin: It is critical from the beginning of the intake and case management process to organize the evidence in an efficient and effective way and have a process for doing so. It is often the case that an investigator will fail to preserve the identity of where he or she obtained the collected documents, when they were prepared, and by whom. Often times someone will write on or otherwise alter documents after-the-fact. This can be a dangerous practice as inadvertent comments get preserved and are often discoverable, potentially creating new “bad” evidence. Each company should have an effective protocol to preserve and collect evidence.
About the Authors:
Conducting Global HR Investigations, Katherine Cooper Franklin and Tahl Tyson, Compliance Week, January 25, 2013
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