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Litigators usually aren't natural investigators, but in-house counsel can often be called on to play that role. Whether it's responding to an allegation of harassment, accusations of discrimination, or internal whistle blowing, in-house counsel will sometimes have to play the role of Sherlock Holmes, rather than ... whoever played Sherlock's lawyer.
That means taking a different approach to investigating complaints, often beginning with a simple investigatory interview. Here are seven tips to help guide your way through the investigation process.
1. You're Not Actually Sherlock
We're sorry if we got you too excited with the Sherlock analogy. Internal investigations are typically more straightforward than the great detective's adventures, usually involving only interviewing parties to the alleged offense and any potential witnesses. You'll have to save the forensics for another matter.
2. Work Your Way Out
Start at the center by interviewing the complainant. Gather any facts or perspectives that aren't revealed in the initial complaint. From there, you should speak with the alleged wrongdoer and finally any potential witnesses, including coworkers, supervisors, and occasionally non-company third parties.
3. No "Hug and Make Up"
Don't bring two parties together to "work it out." Don't interview a complainant in front of the alleged wrongdoer. If you need to bring the parties together, typically do it at the conclusion of your investigation only.
4. You're the Company's Lawyer
Remind everyone who you work for, so they don't get the idea that you are representing them individually rather than working for the company itself. Remind parties and witnesses that anything they say may need to be disclosed to others in order to resolve the matter.
5. It's Not a Deposition
An investigatory interview isn't a contentious deposition, so don't treat it as such. Avoid aggressive questioning and unreasonably long interviews and try to maintain an appearance of neutrality when dealing with all parties.
6. Don't Take Sides
You should be on the side of the company who you work for, not the complainant or alleged wrongdoer. Effectively investigating a complaint means being open to the possibility that either side is correct -- or that neither is. Siding too quickly with a party can bias your perspective, undermining the effectiveness of your investigation.
7. Prevent Retaliation
Managers and supervisors should already know that retaliating against an employee for filing a complaint or participating in an investigation is illegal. Remind them.
Follow these tips and you should be able to conduct an effective, if non-Holmesian investigation. Call it "In-House Counsel and the Adventure of the Efficient Workplace Investigation."