We commonly confront situations that have grown more serious over time or have festered for months or years because information was not promptly acted upon. We hear the following refrains: “We did not investigate because the information was a rumor” or the “allegation was secondhand” or the “complainant did not want an investigation” or the “complaint was anonymous.” None of these factors, however, prevent an investigation from being commenced. If you would investigate if a complainant walked right into your office, you should investigate if you receive the same information in other ways.
Admittedly, the source and nature of the information at the outset may pose challenges and complications for your investigation. But, they may not. And, in any event, there is almost always some information you can uncover.
If you don’t put in that effort, and the conduct continues or worsens, it will be difficult to explain (whether to your employees or to a court) why, upon receiving notice of the conduct, nothing was done. If there was ever any doubt about that, it should now be gone. We’ve all seen the countless examples from the last few years of companies deciding that a rumor or gossip did not justify inquiry only later to realize that the problem would not resolve itself. And, if there is absolutely nothing to a rumor, the subject of such gossip deserves to have the issue addressed.
In fact, the reason we so often hear the explanations for not investigating is that, by the time we’ve been called in, what was once a small, new issue has grown larger and more complex. A prompt response often nips these situations in the bud, avoiding the need for a lengthy and complicated investigation.
In short, be curious. Try to shed light and find out more. Whatever you find, the information will empower you to make better decisions and demonstrate a commitment to being proactive in response to any hint of misconduct.
Avoid the Following Investigation Blunders
Last month, we provided you with an overview of “Investigation Blunders” to avoid in 2020 (click here). Over the rest of the year, we will be highlighting each in turn.
- Not investigating “hearsay” or “rumor” or not investigating because the complainant asked you not to
- Sitting on your hands
- Prioritizing being done over being thorough
- Failing to talk to comparators or former employees
- Building a case instead of investigating a complaint with an open mind
- Talking too much and/or closing off possible responses by using leading or accusatory questions
- Not getting facts – letting the witness characterize events
- Promising confidentiality
- Checking your other senses – including common sense – at the door
- Relying too much (or at all!) on “demeanor” evidence