Hardball techniques in employment investigations — an opinion

March 2, 2007

I do so much training in the area of employment investigation, that I inevitably run into experienced investigators who think differently than I do about techniques, approaches and boundaries in workplace investigations. I welcome the opportunity to hear the perspective of others, because there is always room to learn and expand our skill sets. I do, however, find that a particular challenge that I face with some regularity, is worth refuting. That challenge? The approaches I recommend are too “soft” and “touchy feely” and don’t press hard enough for admissions/confessions.

To be fair, this challenge tends to come from former law enforcement practitioners who have cut their teeth and honed their skills in criminal investigations. These are folks who have learned to interview with the goal of protecting the public safety, and the stakes in those investigations are often quite high. To that extent, confronting respondents with implicit threats or intimidation, stating to a respondent that you have already concluded that they are “guilty” and are just seeking an explanation, or using psychological manipulation or even intimidation might be warranted, within the bounds of constitutional and civil rights protections. If we are talking about protecting children from predators or the community from a violent actor, these techniques may be justified.

We must be very clear that employment investigations ARE NOT generally a matter of community safety (with some notable exceptions — in which case law enforcement SHOULD be involved), and that they are much more focused on determining whether an employer must take steps to protect their business interests, property and reputation. Employment investigations are conducted so that an employer knows clearly what has happened and can take appropriate steps to address anything that has transpired which is contrary to it’s own policies, the law or even it’s own cultural values.

What is extremely important to keep in mind is that even when employee wrongdoing is discovered, the employee may very well be a continuing member of the organization. It is not in any way guaranteed that the employer’s remedial action will include termination; thus the employer has a stake in approaching employees with the assumption that there is likely to be a continuing relationship with that employee. In other words, the employer has as much stake in treating the accused employee with dignity, respect and fairness as it does in finding the facts. Particularly if it is discovered that an employee has been wrongly accused or has done only a small fraction of what is alleged, destroying the trust and engagement of the accused employee is counterproductive, and may put the company in harm’s way.

I am not arguing for being non-confrontational. There is a difference between confronting someone with evidence and demanding that they be truthful about it and the use of intimidation and threat. There is a difference between expressing doubt to a respondent about his or her truthfulness and making a statement that the interviewer is certain that they are lying. Effective interviews can push hard against the credibility of a respondent without attacking or alienating them, when they are conducted with a real earnestness to get at the truth.

If an investigator approaches an employment investigation with the notion that their job is to “catch the bad guy,” they are likely to be challenged for their methods and their overall approach. I have seen notes from investigations in which respondents were never given the opportunity to respond to the allegations against them, interviews in which people accused of misconduct were threatened with their spouse being notified of the allegations, and recordings of an interview in which the interviewer told the respondent that he thought the respondent was a “scumbag.” Each of these investigations was easy to disassemble as biased, manipulative and ineffective. A more productive approach is to keep in mind that an investigators job is not to make a case for “conviction,” but to simply determine “what happened.” In other words, it is a much a “win” for an investigator to find that there is insufficient evidence of wrongdoing as it is finding a “smoking gun.” The gold standard is not the number of people an investigator “takes down,” but how even handed and fair the findings of the investigation are.

There will always be differences from investigator to investigator in the techniques they choose to use and the style they bring to the employment investigation. Employment investigators can take advantage of the desire of most people to keep their jobs in order to find ways to encourage truth telling without resorting to techniques that can later be blamed for false admissions or inappropriately extracted statements. Employment investigators can rely on valid credibility assessments and good evidence review to establish conclusions based upon the weight of the evidence rather than have to press ruthlessly to establish facts beyond a reasonable doubt. For this reason, I argue that most employment investigations are best completed without resorting to the hardcore techniques used by criminal investigators.

Let me know your thoughts. Comment Below.

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