USA – NEW YORK Trends and Developments Contributed by: Tracey Levy, Simone Handfield and Raphael Lee, Levy Employment Law, LLC
Skills and experience Smaller organisations often do not have an internal human resources function. HR support may be pro - vided through a professional employer organisation (PEO) or may be assigned to the business owner, the head of operations or the finance head. Or perhaps an organisation does have one or more internal peo - ple responsible for human resources, but their role and experience have primarily focused on recruiting, benefits administration or HR advisory work, with lit - tle or no experience conducting workplace investi - gations. In these situations, leveraging the skills and experience of an outside investigator is helpful. Some organisations will retain an outside investigator for support on an ongoing, as-needed basis, while oth - ers may engage an outside investigator on a more ad hoc basis, if a concern has been raised where an investigation seems appropriate. Workload management Finally, sometimes an internal HR or investigations team just has too much on its plate or is short of one or more staff and needs additional resources on an interim basis. In these situations, the outside investigator still offers the benefit of more independ - ent accountability and perspective, but primarily the investigator’s value is in being able to “hit the ground running” and offer support. Selecting a Workplace Investigator: Should the Investigator Look Like the Complainant? Where legally protected characteristics of race, gen - der, ethnicity or religion are central to an employee’s complaint, some organisations may seek an investi - gator who is perceived to align with the same demo - graphic group as the complainant. Sometimes the objective is to find someone who can understand the lived experience of the complainant; other times the concern is about the optics of the engagement. In either case, the approach starts from a biased premise that may do a disservice to the respondent and does not assure an effective investigation. The bias inherent in matching for race/ethnicity/ gender/etc When an organisation chooses an investigator because of the investigator’s race, ethnicity, gender or other protected characteristic, that is discrimination.
plaint reflecting a potential serious policy violation. Or a workplace concern may involve the head of the organisation’s HR, compliance or legal function. In each of those circumstances, the individuals within the organisation who would typically be conducting a workplace investigation are being asked to look into a complaint against the people who ultimately determine the investigator’s pay and future with the organisation. The internal investigator’s independence and ability to conduct an effective investigation may be compromised in that situation. Even if the internal investigator feels equipped to dis - regard the underlying power dynamics and objectively gather and evaluate the factual information, there is an overriding appearance of undue influence that may undermine the confidence of the complainant or other parties in the objectivity of the outcome. The com - plainant may raise concerns about the process to co- workers, and employees may be disinclined to raise concerns internally in the future. An outside investigator can help an organisation avoid these conflict-of-interest concerns. The outside inves - tigator may be retained by and asked to report directly to the board, outside legal counsel, or a senior leader within the organisation who is above or outside the reporting lines of the parties involved in the matter (such as reporting to the CEO or CFO on a matter involving department heads within HR or legal). Sensitivity of the issue Sometimes the nature of the concern raised warrants retaining an outside investigator. For example, mat - ters involving a sexual assault or a domestic violence issue that has carried into the workplace may present particular sensitivities that the internal investigations team is not experienced to handle. A trauma-informed approach is recommended for investigating these types of matters, which involves a focus on open-end - ed questions, delicate probing, and an appreciation that the complainant’s account may be fragmented or disjointed but still credible. These attributes of a trauma-informed approach are arguably best prac - tices for any workplace investigation, but if the inter - nal team lacks appropriate training in them, then an outside investigator may be a better option to conduct an appropriate investigation.
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