HR or Legal: Who Conducts an Investigation? And from Where?

By Allen Smith, J.D. Oct 20, 2016
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SAN FRANCISCO—When there is a need to conduct a workplace investigation, who is the detective? If a lawyer does the work, there may be the advantage of attorney-client privilege. But employees may clam up if lawyers are involved and may be more comfortable opening up to HR, said Andrew Foose, vice president of advisory services at Navex Global in Lake Oswego, Ore. Navex Global is an ethics and compliance consultancy.

Speaking at the Association of Corporate Counsel's Annual Meeting on Oct. 17, he noted that sometimes one department will automatically be assigned an investigation. Ethics and compliance may be its own department at large employers. Or employers may "noodle through" who is assigned ethics and compliance investigations on a case-by-case basis.

Biweekly meetings can be a good idea to make sure everyone is up to speed on which department is conducting different investigations, Foose said.

Cameron Hoffman, is senior corporate counsel and head of global investigations with Symantec, a provider of products that protect computers from malware based in Mountain View, Calif. Hoffman said she has subject matter "swim lanes," delegating who is responsible for investigations of different matters. HR is responsible for the investigation of harassment and wage and hour issues, for example. .

There may be different tiers of risk in different cases, Hoffman said. In some cases there may be a great deal of risk, so "you'll have to have an attorney in your lap." Or there may be a case where the attorney is available for shared input, she noted. If a case "gets more touchy, counsel gets more involved," she said.

In addition, business partners may be crunched, so that legal needs to step in and take care of an investigation, she noted, saying, "Everyone's strapped for resources."

U.S.-Led Investigation or Local?

In investigations of issues in locations in other countries, another question that arises is who leads the investigation: someone locally or someone at headquarters in the United States?

There are advantages with having the U.S. home office lead, including consistency, a higher level of sophistication in conducting investigations and access to corporate data. But a local team will have greater access to local data, Hoffman noted.

Sometimes who leads comes down to which is more important—proximity to decision-makers versus witnesses, she said.

U.S. headquarters and a locality may partner up on investigations. But if they do, "know who's leading so you do not step on each other's toes," she said.

Overseas Challenges

Regardless of who is involved, investigations conducted overseas can be particularly dicey. In France, for example, there is the right to a language accommodation, and this is a best practice elsewhere, including in Quebec and Brazil, Hoffman noted.

Translators should be professionals and trained not to sanitize witnesses' answers, Foose said.

Working with translators is "a whole different ballgame," said John Price, former global compliance director with CEVA Logistics U.S. Inc., which provides freight management and is headquartered in Houston. Spend more time on questions that a translator will field. Try phrasing the same question different ways to see if the witness answers consistently, he recommended.

Navigating cultural norms can be challenging as well, Foose noted, saying that in some cultures there is, for example, a tendency for witnesses to tell interviewers what they think the interviewer wants to hear.

Another challenge for interviewers overseas is that people who are interviewed may have the right to review the interview notes. So, she said, don't jot down, "This person is totally lying to me."

When conducting cross-cultural interviews, be careful not to read in to something that's not there because of differences in race, gender or amount of eye contact, Hoffman cautioned, saying there is a greater risk of "false impressions" with such interviews.

Foose added that studies have shown there often is an overemphasis of body language in interviews and that listening leads to more accurate interviewing results. 

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