On Workplace Investigations and Hiring Outside Investigators

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.

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Interview References:

• Bernadette Sargeant’s Stinson profile.

• 1:58 | Sargeant, Bernadette. (2023, August 21). When Hiring Outside Counsel Is a Good Investment. HR Daily Advisor.

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TRANSCRIPT

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.

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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?