Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation about workplace investigations.
Our guest is Bernadette Sargeant, a partner at Stinson. A veteran of investigations both in private practice and government work, Sargeant walks us through how human resources teams should decide when to hire an outside investigator to look into claims.
She names three specific times—when the complaint is against someone above you in the organizational chart, when the complaint is against HR, and when the complaint is one in a series that the company has been unable to resolve.
Bernadette Sargeant’s Stinson profile.
1:58 | Sargeant, Bernadette. (2023, August 21). When Hiring Outside Counsel Is a Good Investment. HR Daily Advisor.
I. INVESTIGATIONS IN THE WAKE OF COVID DISRUPTION
Matt Crossman, Host: We’re going to focus on outside investigations, but before we get there, I want to set this interview in the current workplace investigative environment. In a recent article, you noted that since the return to more in-person work after the pandemic, there has been a noticeable increase in complaints requiring investigation.
Is there a trend in terms of types of cases, and why do you think this is happening?
Bernadette Sargeant: Well, I can speak from my own experience and what I’m familiar with from colleagues in my firm, partners in my firm, and also people that I know at other firms who do this kind of work.
For people who were able to work remotely, since they’ve been coming back to the office or coming back in hybrid situations, they’re a little less willing to just tolerate things that make the workplace uncomfortable for them or unpleasant for them. Human resources internally could have noticed an uptick in people complaining about cubicle mates or people next door to them.
In my particular practice area, I have noticed an increase in claims against higher-level officials who have shown over the years an alleged pattern of certain kinds of inappropriate conduct—so certainly workplace harassment, like yelling, bullying. A lot of people don’t realize bullying is a serious thing that affects the functioning of the company. It also produces legal liability. People aren’t willing to put up with that as much.
So even if it’s something short of racial or sexual harassment or harassment based on some other characteristic, bullying by itself can be a real problem. And returning to the workplace, people are less willing to ignore that kind of behavior, and they’re more likely to make a complaint. I think they feel more empowered to make a complaint.
II. WHEN TO HIRE AN OUTSIDE INVESTIGATOR
MC: Now we’re going to dive into when to do outside investigations. The first question any HR exec or in-house counsel is going to have is when should I hire an outside investigator? In a recent piece you named three instances, and I want to take them one at a time and get your comments.
The first example you give is when HR would be investigating allegations against high-level executives or individuals above them in the organization’s reporting structure. Is this as simple as “don’t investigate your boss,” or is it anyone higher than you, regardless of whether there’s a direct line between you and them on the organizational chart?
BS: There might be a division head who is not in the HR person’s direct reporting line, but who nevertheless has a lot of influence over a large group of employees, a lot of influence, maybe in the way that the company is run overall.
It can be both a perception problem and an actual impediment to the HR person necessarily fully functioning as an objective investigator, even if that person is not their direct boss. So it’s not as simple as “don’t investigate your boss.” It can be anyone who is powerful or has a lot of authority that can impact the human resources investigator later down the line.
And that doesn’t mean everyone though. A lot of times, HR is almost like a general counsel’s office in the sense that they may not be above the people, but they’re always advising the people. So you’ll sometimes have a department head who relies very much on HR for advice on managing employees.
MC: The second example you give is when allegations involve claims against HR specifically. Frankly, this seems like a no-brainer, but my guess is if you have to put it on the list, maybe it isn’t. So walk me through that, and what have you seen in that area?
BS: Well, it might seem like a no-brainer except when the situation actually presents itself. You know what I mean? Like the employee makes a complaint and someone from outside looking at it might think, this includes a complaint against HR, the HR director or the HR business partner.
But HR doesn’t see it that way. They might see it as, oh, everyone’s always complaining about HR. This is just another complaint about HR. We can investigate this. So it’s not as simple as it looks. You have to be willing to say, if you’re HR, are we implicated in this? And would it be better to have someone who’s not in our group do the investigation?
MC: The third example of when you suggest companies should hire an outside investigator is when the allegations involve a recurring problem that has been resistant to change. I imagine this one has the most wiggle room and is hardest to define. What tips do you have as to how to make that decision?
BS: Well, this one kind of overlaps sometimes with the “don’t investigate people higher than you” item. Let’s say your organization is a manufacturing company, and there’s a particular section of the plant where one or two people always seem to cause problems on the line.
They’re insubordinate. They bully their co-workers. And that’s something HR typically will handle, helping the manager with the verbal warning and the written warning, whatever their process is. And HR is very confident to handle that.
But what if the person is actually a higher-level manager? The manager of the people in this particular part of the plant has a history of yelling, maybe has a history of alleged sexual harassment of female workers in that section of the plant and has been counseled and maybe there’s been some investigations where things haven’t been substantiated, but the complaints keep coming back.
And then there’s a concern about whether people are being completely transparent in their interviews with HR because they feel like the manager’s right there, he or she can get me anytime they want. HR is not always here to protect me. Sometimes it helps to have outside counsel come in or an outside investigator come in with that formality and arm’s-length distance from the situation that’s being investigated.
I have had it happen where someone has come into an interview and brought with them notes that they’ve had from years before about the same manager and the same sort of pattern of conduct.
And also if you have a long-term problem, especially if it’s a serious problem, like repeat sexual harassment allegations against a person, you want to have that organized and dedicated approach to the investigation.
So often in an HR office, the person or people who usually do investigations, they can be stretched very thin with other duties that they have in human resources. If you retain someone to come in and focus on this problem for you, they’re going to be dedicated to that problem
Another thing that’s important to keep in mind is that if you hire an outside counsel to do this investigation, and your ultimate aim is to get legal advice, your investigation can be conducted under attorney-client privilege. And that’s useful because a lot of times if allegations are substantiated, they’re very serious. You can have that confidentiality to discuss the facts that have been gathered and presented to you in your report of investigation and make some internal decisions about sticky situations under attorney-client privilege, if you’re discussing this as part of the investigation.
And then later if you want to use the investigation defensively to show actions that the company took, the company can make the decision to waive attorney-client privilege as to the investigation.
MC: Those three examples are all pretty specific. Let’s zoom back out. If an HR person or in-house counsel is trying to decide whether to hire an outside investigator and the case doesn’t fit any of those examples, what questions should they ask or what parameters should they use to decide whether to go outside on a particular case?
BS: I have several times gone into a situation and the client has said, “This is the complaint we have now, but we’ll be honest with you, this particular executive, we’ve had feedback about him or her periodically. Two years ago, this was the outcome. Last year, this was the outcome.
“So now we really have a problem here. This executive is high functioning, produces a good product for us. But this is getting to the point where we’re worried about the overall productivity and functioning, and also our risk as this is happening over and over again. And now we’re in a situation where we definitely can be accused of having knowledge.”
Outside counsel can help you get your hands around a situation like that. And when you hire a lawyer to do something, like an investigation, you expect to be able to burrow into details with him or her.
A good outside investigator should be able, after you’ve had a chance to read and digest their report, to pinpoint things and ask questions, and have them give you insights that may not be in the report, but that they have from the investigation to help you answer questions about what to do going forward.
III. COMMON MISTAKES TO AVOID
MC: What are common mistakes that HR people and in-house counsel make repeatedly in this area that would be easy to avoid?
BS: I don’t know if it’s easy to avoid, honestly, but I can think of two things. One, human resources and in-house counsel sometimes overlook or underestimate the impact of their own biases about not just the situation but the people involved.
Very often you can have an extremely difficult, maybe not very high performing complainant who is nevertheless advancing a very valid complaint. I can remember more than one situation, but one in particular, where the complainant for whatever history of reasons was just very annoying to HR. She was just a difficult person, and she pointed out a lot of small things all the time.
When I met her and interviewed her at length about her complaint, not having that history with her, I could see her for what she was and how she would present to a jury, for example—intelligent, well spoken, dedicated.
Yeah, maybe if I had to be her HR business partner, I’d find her annoying, too. But I think people overlook that all the time. And they kind of underestimate how much that could bias them.
So that’s the first thing. The second thing also, I don’t think it’s that easy to overcome, even though it might seem like it should be easy to overcome, HR can be so overwhelmed. A lot of times I see HR investigative files that just are not good. I mean, reports don’t really make sense. A lot of companies think it’s easier to have the employee dictate a statement, and you end up with a file that’s almost indecipherable.
It takes a lot to read and piece together what actually happened, and it’s not because you have a bad HR person who’s not smart, it’s because that person doesn’t have the time that an outside investigator will dedicate to this project to make sure that they’ve given you a high quality, coherent product.
Now, I’ve also seen some excellent HR investigative reports, but that tends to be extremely experienced people who have kind of a sub-specialty within their department of doing the investigations.
MC: I wanted to ask another question about one of the additional benefits to hiring an outside investigator. I want to read a quote to you from your piece. “If the allegations are not substantiated, those findings carry more weight when they have been made by an outside counsel’s investigation.”
What do HR execs and in-house counsel need to think through when they decide whether to hire somebody based on that idea?
BS: Most clients that I’ve had approach me, they’re very conscientious about the fact that they don’t know what the outcome is going to be. And they’ve prepared themselves for the worst—that the allegation could be substantiated. And then when it turns out that it’s not, they’re so happy and relieved.
And they can say, “We have this report. We took a lot of time. We got this person to talk to everyone and this was the finding. We can have confidence that it’s a finding that the allegations are not substantiated.” And I’ve had that happen.
I had one organization that over the course of a few years, I must have done maybe three investigations for them. And the first two were substantiated, and they had to do remedial work internally. When the third one came in and I did my investigation, and it was not substantiated—the manager was not biased against this particular employee, and here’s all the reasons why. The HR VP was just on cloud nine, that one of his good managers was not in trouble now. He felt very confident to defend it to the complainant and others in his reporting line.
IV. HOW TO SPOT A LIAR (HINT: IT’S NOT BY BODY LANGUAGE)
MC: Now I want to pivot and ask you some professional development questions. You’ve worked in private practice, in government work, and as a solo practitioner. The common thread seems to be workplace investigations. Did you pursue that intentionally, or is that just where your career took you?
BS: It’s where my career took me. I started off as an associate in an AmLaw 50 firm. I will refrain from naming the firm, but I started off as a young associate there, and I was assigned to a huge set of class actions that were employment-related litigation.
Part of what they had myself and another young associate doing was interviewing and writing memos about some of the key named players in the class-action complaints. So people who showed up as alleged discriminating officials in more than one allegation, we would interview them about the allegations in the complaint about the employees that had been named potential class members and write up a memorandum.
That turned out to be a strength for me—doing these interviews and writing up the findings and giving insights about who we thought would be good witnesses, bad witnesses for whatever reason, what their vulnerabilities were. So I did that as a young associate. Then I went to the U.S. Attorney’s office as my next assignment.
At the U.S. attorney’s office on the criminal side, you do a lot of investigations as part of the prosecution, and in the D.C. office it was no different. Plus, we did local crime prosecution. We had federal and superior court grand juries that required investigations. We also did police shooting investigations.
After I left the U.S. Attorney’s office, I went to the Department of Justice in an office called the Office of Professional Responsibility. And we investigated allegations of professional misconduct made against Department of Justice attorneys in their official capacities. Those weren’t exactly workplace conduct, they were professional conduct.
Our office also investigated similar allegations against FBI agents or DEA agents, if the allegation arose as they were acting in concert with prosecutors or civil DOJ attorneys. I was at the House Ethics Committee, and that involved a lot of investigations as well.
And when I opened my solo practice, I was just very fortunate to get recommended for a project from my old firm where I was a young associate. A couple of my peers had stayed and become partners there, and they needed someone who would be available to investigate workplace conduct complaints as part of a consent decree in a case.
And now I’m at Stinson. And investigations have also been a very large part of my practice here. Because I’m affiliated with this firm, I’ve been able to get some very good investigations work. It’s been a really rewarding part of my practice
MC: When you’re investigating, how can you tell if someone’s telling you the truth?
BS: Actually, I think it’s a myth that there are necessarily tells that go across all kinds of people. I think if you know a person—they’re a colleague or you know them in some other context—you might get to know their individual tells.
There’s materials out there and training out there that talk about nonverbal cues as a universal, but I’ll tell you there’s some people who will never meet your eyes when they’re talking to you, and it doesn’t mean they’re lying necessarily.
It could mean that they’re intimidated. It could mean that they think it’s rude to look you straight in the eye the whole time. I tend to try and get a sense of the individual, and if I feel like the person is not looking me in the eye and it’s probably because they’re avoiding answering a question or they’re making something up, or they’re telling me a half truth, then you layer down into the substance of what they’re saying and try to figure out if you can see something that you can later describe objectively that shows you, this person was telling me a lie—not just their demeanor. I wouldn’t trust a report that comes from a lawyer where they just rely on the demeanor of the person.
MC: Have you ever had anyone crack and admit, OK, sorry, I was lying.
BS: Oh, for sure. I had an interview once that went on for several hours, and the person was saying different things at different points of the interview. They went on for so long that they lost track of what they’d said the hour before.
MC: If a big part of your professional life is trying to get the truth out of people, does that affect the rest of your life?
BS: Well, I’ll tell you, I am not tough. I think I come across that way sometimes. I have an assertive personality. I’m not shy. I’m extroverted. I try to be direct with people because I think it’s honest, but I also try not to hurt people’s feelings. But I’m not that tough.
I actually tend to believe what people are telling me in the first instance, and I actually think that makes you a better investigator in some ways because you’re not fighting the person as they’re giving you information. You’re just receiving their information. I want to get the information from this person, and then I will synthesize it either as we’re processing it during the interview or after the interview. I’ll compare it to what others have said. I’ll compare it to documents, emails, maybe tape recordings you might have of things. And then I’ll assess, but I actually do tend to approach each person as if they’re telling you the truth.
Or at least I’m not questioning it. I’m taking the information that they’re giving me, even if it seems contradictory to what other information I’ve been given. I actually am that way in life, for better or for worse.
I tend to believe what people are saying unless I can point to a reason that it’s bothering me, even if it’s just intuition. For example, you don’t necessarily believe every contractor who comes to your house with an estimate.
This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on July 31, 2023.
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