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When attorney Allison West talks with HR professionals about how to investigate the potential misconduct of company executives, she starts with this hypothetical scenario:
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An accounting manager comes to you claiming that her CFO sexually harassed her. On top of that, the manager accuses the CFO of filing faulty expense reports. “Is this a big investigation?” West asked attendees at her June 20 concurrent session at the Society for Human Resource Management 2016 Annual Conference & Exposition.It is, she answered, and there’s one reason why. “Power,” said West, SHRM-SCP, principal with Employment Practices Specialists in Pacifica, Calif. “That’s what separates this. That word alone changes everything.”A company’s top executives wield power over HR professionals’ jobs—not to mention the jobs of other employees who might be potential witnesses—company information that might provide evidence of wrongdoing and in-house attorneys whose investigations could be tainted by bias.Hence, investigating an executive’s alleged wrongdoing, West said, can be one messy endeavor. The first task in conducting an investigation of an executive, West said, is what she calls “selecting the sleuth.” And that person may not be the HR manager. “There’s no other position that straddles the fence of being an advocate for employees and then an advocate for your CEO and the company,” she said. “Take that into account when you decide if you’re the right person to conduct these investigations.” Hiring outside counsel might be one solution, she said. Another may involve the board of directors creating a small task force to look into wrongdoing. But if the HR department conducts the probe, she said, it’s critical to ensure that the investigator has no bias about the outcome, understands the legal or criminal implications, has investigative expertise, and won’t be intimidated by asking the executive tough questions. “If you are investigating the CFO for sexual harassment, you may have to say the word ‘penis’ in front of him without giggling or choking at the same time,” West said.Be aware, she added, that most states require an outside investigator to be a licensed private investigator or a lawyer who creates an attorney-client relationship with the employer. Other considerations, she said, include: The timing of the investigation. Start before there are any government probes, she said. Delays will look like bias or a cover-up. Delays may also give the executive a chance to destroy critical evidence. The scope of the probe. Ensure that there’s a clear chain of command so that everyone knows who’s authorized to give permission to expand the investigation if new facts surface or who decides if and when to hire more investigators or experts. The gathering of evidence. One of the first things to do is to get an executive or attorney to pronounce a “document hold” to prevent the destruction of electronic or paper documents. Consider ways to protect such evidence, West said, including imaging hard drives, server files, e-mail files or individual laptops. This should always be done with the advice of counsel, she said, but it can also be done without the permission of the executive under investigation. “Are you going to call your IT manager to do this?” she asked. “That’s a bad idea. You’ll probably want to get someone from the outside, and it may have to be done after hours or on the weekends.”Interview preparation. When an investigator presents an executive with allegations and insists on an interview, the executive may say things like “I want all questions in advance, in writing,” or “I will respond only in writing,” West said. “This is very common. You say, ‘Thank you for that opportunity, but no.’ ” Sometimes, she said, other employees—even other executives—who may know of the misconduct will be afraid to meet with an investigator for fear of retaliation. West experienced this with one Fortune 25 senior vice president—a man with three children in college who feared losing his job if he talked. She assured him that she would only ask him questions if she knew that at least two other people at the company had the same nefarious information about the executive under investigation. This way, she explained, the vice president could not be singled out as the person who revealed incriminating information. The “yak” factor. “People love seeing other people in misery,” West said. “Our job is to keep [gossip] as contained as possible.” HR professionals can do that, she said, by being careful who they speak with about a probe; by steering clear of false statements that could be grounds for a defamation lawsuit; and by deciding early on who will speak with the media, who will manage social media postings by employees or the public, and who will deal with shareholders about the investigation. Dana Wilkie is an online editor/manager for SHRM.
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