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Season 2, Episode 7: Workplace Investigations
From Lawyer to Employer: A Shipman Podcast
In this podcast episode of "From Lawyer to Employer," host Dan Schwartz and guest Rauchell Beckford Anderson discuss workplace investigations and the ethical issues that may arise. Rauchell, who recently became certified by the Association of Workplace Investigators, shares insights from her training and emphasizes the importance of conducting investigations impartially. They cover topics such as the necessity of determining the need for an investigation, selecting an appropriate investigator, and maintaining objectivity. They also discuss the pros and cons of remote interviews, the significance of timeliness and thoroughness, and the use of AI in transcribing interviews. The episode underscores the need for careful planning and ethical considerations to ensure the integrity of workplace investigations.
Welcome to From Lawyer to Employer, a Shipman podcast, bringing you the latest developments in labor and employment law, offering you practical considerations for your organization. You can subscribe to this podcast on Spotify, Apple podcasts, Google podcasts, or wherever you listen. Thank you for joining us.
And we hope you enjoyed today's episode.
Daniel Schwartz: Hi, and welcome back to From Lawyer to Employer. I am your host, Dan Schwartz, partner at Shipman & Goodwin. On today's podcast, we're going to talk about workplace investigations and the ethical issues that might arise from them. Investigations are really a feature that we've seen now in employment law, particularly over the last five or ten years, and more employers are using them when issues come up, everything from sexual harassment matters to workplace crimes and everything in between.
On today's podcast, we're joined by my colleague, Rauchell Beckford Anderson, who recently gave a presentation on workplace investigations and ethical issues at our fall webinar series earlier in 2023. So welcome, Rauchell.
Rauchell Beckford Anderson: Thank you so much, Dan. I'm happy to be here with you today.
Daniel Schwartz: So before we get into it, I'd be remiss if I didn't mention that you recently got certified as part of the Association of Workplace Investigators. It might be something, AWI, that our listeners might have heard of, but can you talk a little bit more about your experience with them and what training you got as a result?
Rauchell Beckford Anderson: Thanks, Dan. So AWI is the Association of Workplace Investigators. It is a professional membership organization for individuals who conduct and manage workplace investigations.
So as part of the association, you have access to ongoing trainings relative to workplace investigations. So recently I attended the AWI's Workplace Investigations Training Institute and as part of that I went through a week long intensive training to develop or to further develop, I should say, my workplace investigations skills and also at the end of that training I went through an assessment and after the assessment I found out that I passed the test and now I am a certificate holder for the Association of Workplace Investigators to conduct impartial workplace investigations.
Daniel Schwartz: Yeah, and I think you touched on the fact that we've all been doing investigations for many years. We're just now seeing a level of professionalism that is being brought into the investigations as well, and AWI has been a part of that so I know your experience with that, we've talked offline about some of the things that we can bring to the practice of workplace investigations. I appreciate that, but let's get into it now and sort of set the table. On ethical issues, on workplace investigations, what does that really mean?
Rauchell Beckford Anderson: So, when you think about workplace investigations, even though it's not litigation, you're conducting an investigation, there's certain rules that we still have to follow and attorneys are held to a much higher standard when it comes to being ethical. So, if an attorney is doing a workplace investigation, they have to make sure that they're following the same principles and guidelines that you would follow if you're litigating a case or if you're providing maybe counseling to a client.
Daniel Schwartz: Now, to be clear, attorneys don't need to conduct all investigations, right?
Rauchell Beckford Anderson: No, that's correct. So, an attorney can conduct the investigation as well as someone who's internal, for example, an HR individual or an EEO representative of the company. And some companies as well also use private investigators. So, when I went to the training with AWI, there were several private investigators there as well as attorneys or other internal individuals.
Daniel Schwartz: Now being an attorney though as part of the investigation can bring with it a benefit of being privileged, right?
Rauchell Beckford Anderson: Yes. So, if you're the attorney, obviously everyone knows about attorney client privilege. So, if the attorney does the investigation and you do the investigation as a privileged investigation, then you can maintain that privilege of whatever you did during the investigation with the client.
Daniel Schwartz: So when might you use an outside investigator for a company?
Rauchell Beckford Anderson: So that's something that's important to consider at the outset of the investigation. If, say, for example the allegation involves someone that's in a higher level, for example, a vice president or maybe an HR manager. There could be a conflict if maybe the HR manager is the one who usually conducts the investigation or another HR associate. So, you have to take a look at whether or not there are any conflicts that could jeopardize the investigation because you want to make sure that the investigation is impartial. So, in that situation, you want to think about someone who is external, who doesn't know the parties that are involved, or anything about the in’s and out’s of the company.
Daniel Schwartz: The impartiality of the investigation, I think, is something that we tend to think about a lot, but I think can be overlooked at the outset, because a lot of times when companies are getting this, there seems to be an urgency - we need to look at this, and it's always good, I think, to take a step back and figure out how can we best to do this investigation so that whatever the results are can be held up later, right?
All right, so we can't get into everything that you talked about during the webinar, but you had mentioned there some of the ethical points and I'm wondering if there were any that really jumped out for you as you were presenting on the subject.
Rauchell Beckford Anderson: Yes. Some of the important things that you might want to consider to avoid is that you want to think about whether or not the company official that's directing the investigation might be the person who is implicated, so you can't have the respondent be in a position where they're telling you these are the witnesses that you need to speak with or here are the documents that you should consider, you should be in a position as the investigator to, as I said before, do this impartially.
You also want to make sure that you as the investigator, you have a lot of freedom, I should say, to identify the witnesses and decide how broad the scope of your questions should be rather than having someone else within the company direct that and limiting how you can actually conduct the investigation.
Daniel Schwartz: Yeah, so all valid concerns, right? So how does an investigator maintain the integrity of the investigation?
Rauchell Beckford Anderson: So some of the things - I know I've said this word before and I'm just going to keep saying it - you have to make sure that you conduct the investigation impartially. But other than that, you want to make sure too - I know like you said before - everyone's always in a rush.We want to get this investigation done. The respondent doesn't want to sit there for a couple months wondering what's going to happen. So, you have to make sure that you're conducting the investigation in a timely manner. Make sure to send out notices to both complainant, the respondent and witnesses involved to let them know that there is an investigation that's going on, and we will be in touch with you soon.
You have to make sure that you're very objective and that you're thorough. You can't bring in outside influences. When you're making or when you're preparing your analysis for the investigation. Another thing that I do at the outset of my investigations is I always, especially for employees, I always make sure to tell them that I am not their attorney. I am here as an impartial and independent investigator. I also point out as well, if this is the case, that I don't have, I've never met the respondent before, I've never met complainant before, I don't know anything about what is going on except for what you're telling me now. So, they get an understanding that I am here with fresh eyes and fresh ears to conduct the investigation impartially.
Daniel Schwartz: There are different types of formats that an investigation might have. I know over the years sometimes you look at just the facts and you're just a fact finder. Sometimes you're making recommendations and sometimes you're making findings of whether there's a policy or a violation of the law, right?
Is there any preference to that or does it depend on the situation?
Rauchell Beckford Anderson: It's the lawyerly response, right? It depends. So it really depends on what the scope of the investigation that you have to determine at the beginning. What are you investigating? And you also need to make sure you have a conversation with the client to figure out is there a policy that's implicated here? If there's no policy, what else are we looking at to figure out how we should determine how the investigation should be conducted?
Daniel Schwartz: Yeah, you talk about scope just now and it reminded me of the investigations tend to have a little bit of mission creep in them in that you're investigating one thing and then there can be a tendency to go off a little bit on tangents, but I suspect one of the things you learned was try to keep investigations on track without getting too distracted, right?
Rauchell Beckford Anderson: You want to make, and as far as the scope goes, you have to figure out the scope, okay? So are you investigating whether respondent harassed this particular employee, or are you investigate in that they discriminated against the employee based on their race or sex or disability. So while you're just defining the scope, you also have to make sure that you don't lock yourself in too much. So if there's something that comes up and you need to discuss it further you can talk to the client about it, but without going off on a tangent.
Daniel Schwartz: So one of the other things that I found really interesting in your presentation was discussing some of the pitfalls of remote interviews and I know, over the last three years with the pandemic, we are now using Zoom or Teams or Webex a lot more frequently now, but what are some of the concerns to think about as you're doing some of these remote interviews?
Rauchell Beckford Anderson: I will first say that some people will still do all of their interviews in person, but there are situations where you can't really avoid doing the investigation remotely. I do both. I do remotely and in person. If I do remote interviews, there's certain questions that I ask at the beginning. I always ask, are you in a room by yourself? Is there anyone else there with you? Is the door closed? Can anyone else hear you? You want to make sure that you know who else is in the room and you want to make sure that the person is also in an environment where they feel okay to talk. I also ask, I tell them first, I am not recording you and I am going to ask if you're recording me because you don't have permission to record me.
So, there are certain things that I usually just put out front to the witness to let them know and just to make sure that the environment that they're in is fine for the interview, just as if we were in person.
Daniel Schwartz: Yeah, one of the other things we've seen is recordings are becoming a lot more common. Everyone has in their pocket a phone which they can record sometimes without people knowing it. And I was just on a zoom last week giving a webinar and it was populated by essentially AI bots that were transcribing the whole webinar to provide a summary. So, it seems both a positive and a negative, right?
Rauchell Beckford Anderson: Yes, I think so. And this goes back to the investigators preference. I don't record my interviews. Like I said before, I take notes. And for me, the positive with that is these are my notes. These are things that I wrote down. And if I feel like maybe some witnesses talk a little bit fast so I'll ask if I didn't hear something properly, I'll ask them again.
Can you repeat that for me? And I'll just clarify to fix my notes based on what they said. If you want to use AI to transcribe recordings, I think that's really up to the investigator, but you have to make sure that whatever format or whatever tool you're using to transcribe those recordings that they are accurate because the last thing you need is to report something that's inaccurate.
Daniel Schwartz: Yeah, having an AI bot record something as yes, when the answer is no is going to be less than ideal as you are doing the investigation, right? I know we're starting to run short on time. Anything else that employers need to know about workplace investigations?
Rauchell Beckford Anderson: I would say that I think the beginning of the investigation is very crucial. So, for employers, you have to make sure that you take the time while you want to make sure that you get the investigation done. You have to take the time to make sure that you determine one, do you need to do an investigation? And two, even more critical, who is going to do the investigation? Because at the end, you don't want to have someone conduct the investigation that might be perceived later as. as an impartial investigation. So I think that's very critical to make sure that you're thinking about all of these things at the beginning, before the investigation happens.
Daniel Schwartz: That's great and I know we could spend an hour talking about this.
If you're interested in learning more about the subject at ShipmanGoodwin.com, we have all of our fall webinar series programs still up. You can just register for it and you will get a download link immediately and you can listen a lot more and we would certainly appreciate any feedback on any of those webinars that you want to provide.
So, Rochelle, thanks so much for joining us today.
Rauchell Beckford Anderson: Thanks for having me, Dan.
Daniel Schwartz: As always, we would appreciate any comments or ratings on wherever you get your podcasts and watch for the next episodes coming out soon. Thanks again.
Host: Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast.
This podcast is produced and copyrighted by Shipman Goodwin LLP, all rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice. This may be deemed advertising under certain state laws. Subscribe to our podcast on Spotify, Apple Podcasts, Google Podcasts, or wherever you listen.
We hope you will join us again.
Daniel Schwartz: So before we get into it, I'd be remiss if I didn't mention that you recently got certified as part of the Association of Workplace Investigators. It might be something, AWI, that our listeners might have heard of, but can you talk a little bit more about your experience with them and what training you got as a result?
Rauchell Beckford Anderson: Thanks, Dan. So AWI is the Association of Workplace Investigators. It is a professional membership organization for individuals who conduct and manage workplace investigations.
So as part of the association, you have access to ongoing trainings relative to workplace investigations. So recently I attended the AWI's Workplace Investigations Training Institute and as part of that I went through a week long intensive training to develop or to further develop, I should say, my workplace investigations skills and also at the end of that training I went through an assessment and after the assessment I found out that I passed the test and now I am a certificate holder for the Association of Workplace Investigators to conduct impartial workplace investigations.
Daniel Schwartz: Yeah, and I think you touched on the fact that we've all been doing investigations for many years. We're just now seeing a level of professionalism that is being brought into the investigations as well, and AWI has been a part of that so I know your experience with that, we've talked offline about some of the things that we can bring to the practice of workplace investigations. I appreciate that, but let's get into it now and sort of set the table. On ethical issues, on workplace investigations, what does that really mean?
Rauchell Beckford Anderson: So, when you think about workplace investigations, even though it's not litigation, you're conducting an investigation, there's certain rules that we still have to follow and attorneys are held to a much higher standard when it comes to being ethical. So, if an attorney is doing a workplace investigation, they have to make sure that they're following the same principles and guidelines that you would follow if you're litigating a case or if you're providing maybe counseling to a client.
Daniel Schwartz: Now, to be clear, attorneys don't need to conduct all investigations, right?
Rauchell Beckford Anderson: No, that's correct. So, an attorney can conduct the investigation as well as someone who's internal, for example, an HR individual or an EEO representative of the company. And some companies as well also use private investigators. So, when I went to the training with AWI, there were several private investigators there as well as attorneys or other internal individuals.
Daniel Schwartz: Now being an attorney though as part of the investigation can bring with it a benefit of being privileged, right?
Rauchell Beckford Anderson: Yes. So, if you're the attorney, obviously everyone knows about attorney client privilege. So, if the attorney does the investigation and you do the investigation as a privileged investigation, then you can maintain that privilege of whatever you did during the investigation with the client.
Daniel Schwartz: So when might you use an outside investigator for a company?
Rauchell Beckford Anderson: So that's something that's important to consider at the outset of the investigation. If, say, for example the allegation involves someone that's in a higher level, for example, a vice president or maybe an HR manager. There could be a conflict if maybe the HR manager is the one who usually conducts the investigation or another HR associate. So, you have to take a look at whether or not there are any conflicts that could jeopardize the investigation because you want to make sure that the investigation is impartial. So, in that situation, you want to think about someone who is external, who doesn't know the parties that are involved, or anything about the in’s and out’s of the company.
Daniel Schwartz: The impartiality of the investigation, I think, is something that we tend to think about a lot, but I think can be overlooked at the outset, because a lot of times when companies are getting this, there seems to be an urgency - we need to look at this, and it's always good, I think, to take a step back and figure out how can we best to do this investigation so that whatever the results are can be held up later, right?
All right, so we can't get into everything that you talked about during the webinar, but you had mentioned there some of the ethical points and I'm wondering if there were any that really jumped out for you as you were presenting on the subject.
Rauchell Beckford Anderson: Yes. Some of the important things that you might want to consider to avoid is that you want to think about whether or not the company official that's directing the investigation might be the person who is implicated, so you can't have the respondent be in a position where they're telling you these are the witnesses that you need to speak with or here are the documents that you should consider, you should be in a position as the investigator to, as I said before, do this impartially.
You also want to make sure that you as the investigator, you have a lot of freedom, I should say, to identify the witnesses and decide how broad the scope of your questions should be rather than having someone else within the company direct that and limiting how you can actually conduct the investigation.
Daniel Schwartz: Yeah, so all valid concerns, right? So how does an investigator maintain the integrity of the investigation?
Rauchell Beckford Anderson: So some of the things - I know I've said this word before and I'm just going to keep saying it - you have to make sure that you conduct the investigation impartially. But other than that, you want to make sure too - I know like you said before - everyone's always in a rush.We want to get this investigation done. The respondent doesn't want to sit there for a couple months wondering what's going to happen. So, you have to make sure that you're conducting the investigation in a timely manner. Make sure to send out notices to both complainant, the respondent and witnesses involved to let them know that there is an investigation that's going on, and we will be in touch with you soon.
You have to make sure that you're very objective and that you're thorough. You can't bring in outside influences. When you're making or when you're preparing your analysis for the investigation. Another thing that I do at the outset of my investigations is I always, especially for employees, I always make sure to tell them that I am not their attorney. I am here as an impartial and independent investigator. I also point out as well, if this is the case, that I don't have, I've never met the respondent before, I've never met complainant before, I don't know anything about what is going on except for what you're telling me now. So, they get an understanding that I am here with fresh eyes and fresh ears to conduct the investigation impartially.
Daniel Schwartz: There are different types of formats that an investigation might have. I know over the years sometimes you look at just the facts and you're just a fact finder. Sometimes you're making recommendations and sometimes you're making findings of whether there's a policy or a violation of the law, right?
Is there any preference to that or does it depend on the situation?
Rauchell Beckford Anderson: It's the lawyerly response, right? It depends. So it really depends on what the scope of the investigation that you have to determine at the beginning. What are you investigating? And you also need to make sure you have a conversation with the client to figure out is there a policy that's implicated here? If there's no policy, what else are we looking at to figure out how we should determine how the investigation should be conducted?
Daniel Schwartz: Yeah, you talk about scope just now and it reminded me of the investigations tend to have a little bit of mission creep in them in that you're investigating one thing and then there can be a tendency to go off a little bit on tangents, but I suspect one of the things you learned was try to keep investigations on track without getting too distracted, right?
Rauchell Beckford Anderson: You want to make, and as far as the scope goes, you have to figure out the scope, okay? So are you investigating whether respondent harassed this particular employee, or are you investigate in that they discriminated against the employee based on their race or sex or disability. So while you're just defining the scope, you also have to make sure that you don't lock yourself in too much. So if there's something that comes up and you need to discuss it further you can talk to the client about it, but without going off on a tangent.
Daniel Schwartz: So one of the other things that I found really interesting in your presentation was discussing some of the pitfalls of remote interviews and I know, over the last three years with the pandemic, we are now using Zoom or Teams or Webex a lot more frequently now, but what are some of the concerns to think about as you're doing some of these remote interviews?
Rauchell Beckford Anderson: I will first say that some people will still do all of their interviews in person, but there are situations where you can't really avoid doing the investigation remotely. I do both. I do remotely and in person. If I do remote interviews, there's certain questions that I ask at the beginning. I always ask, are you in a room by yourself? Is there anyone else there with you? Is the door closed? Can anyone else hear you? You want to make sure that you know who else is in the room and you want to make sure that the person is also in an environment where they feel okay to talk. I also ask, I tell them first, I am not recording you and I am going to ask if you're recording me because you don't have permission to record me.
So, there are certain things that I usually just put out front to the witness to let them know and just to make sure that the environment that they're in is fine for the interview, just as if we were in person.
Daniel Schwartz: Yeah, one of the other things we've seen is recordings are becoming a lot more common. Everyone has in their pocket a phone which they can record sometimes without people knowing it. And I was just on a zoom last week giving a webinar and it was populated by essentially AI bots that were transcribing the whole webinar to provide a summary. So, it seems both a positive and a negative, right?
Rauchell Beckford Anderson: Yes, I think so. And this goes back to the investigators preference. I don't record my interviews. Like I said before, I take notes. And for me, the positive with that is these are my notes. These are things that I wrote down. And if I feel like maybe some witnesses talk a little bit fast so I'll ask if I didn't hear something properly, I'll ask them again.
Can you repeat that for me? And I'll just clarify to fix my notes based on what they said. If you want to use AI to transcribe recordings, I think that's really up to the investigator, but you have to make sure that whatever format or whatever tool you're using to transcribe those recordings that they are accurate because the last thing you need is to report something that's inaccurate.
Daniel Schwartz: Yeah, having an AI bot record something as yes, when the answer is no is going to be less than ideal as you are doing the investigation, right? I know we're starting to run short on time. Anything else that employers need to know about workplace investigations?
Rauchell Beckford Anderson: I would say that I think the beginning of the investigation is very crucial. So, for employers, you have to make sure that you take the time while you want to make sure that you get the investigation done. You have to take the time to make sure that you determine one, do you need to do an investigation? And two, even more critical, who is going to do the investigation? Because at the end, you don't want to have someone conduct the investigation that might be perceived later as. as an impartial investigation. So I think that's very critical to make sure that you're thinking about all of these things at the beginning, before the investigation happens.
Daniel Schwartz: That's great and I know we could spend an hour talking about this.
If you're interested in learning more about the subject at ShipmanGoodwin.com, we have all of our fall webinar series programs still up. You can just register for it and you will get a download link immediately and you can listen a lot more and we would certainly appreciate any feedback on any of those webinars that you want to provide.
So, Rochelle, thanks so much for joining us today.
Rauchell Beckford Anderson: Thanks for having me, Dan.
Daniel Schwartz: As always, we would appreciate any comments or ratings on wherever you get your podcasts and watch for the next episodes coming out soon. Thanks again.
Host: Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast.
This podcast is produced and copyrighted by Shipman Goodwin LLP, all rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice. This may be deemed advertising under certain state laws. Subscribe to our podcast on Spotify, Apple Podcasts, Google Podcasts, or wherever you listen.
We hope you will join us again.