5 tips to Spot a Sham Internal Investigation

Here are five ways you can tell that your internal investigation is a sham:

1. “This investigation is done under the guidance of counsel” – Can somebody say “conflict!”. Basically, the company is saying the investigator works for us not you. If the investigator finds something bad, the company is not obligated to share with you any potential damaging information that actual may help your own Employment discrimination, harassment, or whistleblower case. Typically the company will instead just reach out to you, try to make you happy by switching you to a different boss, and then hope the situation does not come up again so they can keep the employee who harassed you who just happens the company’s top sales employee.

2. High Opinion Low on Facts : An investigator that wants to manipulate the results of an investigation will often emphasize opinion over fact to get what he/she thinks is the companies desired result. In my years of experience, I’ve seen several instances where an investigator will pick out words from witnesses who don’t like their boss. The investigator will emphasize words like “berate”, “intimidating”, and “unreasonable” to try and paint a picture of a supervisor who is incompetent and unpleasant. Upon further digging, however, I found out that the investigator only spoke to employees who were terminated by the supervisor for performance reasons, the witnesses never gave factual accounts of stories to show how the supervisor “berated” them, and the investigator never asked the supervisor about their side of the story.

3. No Opportunity to Offer Your Own Witnesses – When I used to manage a civil rights investigation office, I noticed that investigators who were trying to shortcut their way through an investigation would consciously choose not to ask an employee for information about what witnesses could support their story. Instead, the investigator would just tell the alleged victim in a harassment case that a thorough investigation would take place and that they would call the alleged victim if they had any questions. Unfortunately, I would notice that the the investigator would then just talk to the alleged harasser and just arbitrarily make a decision as to whether the alleged victim’s version of events were credible.  This is sloppy and lazy work because thorough investigations require the interviewing of potential witnesses to events to see if there is any corroboration. If there is an absence of witnesses, the investigator should then talk to people who have worked with the alleged harasser to see if they have experienced similar situations to the alleged victim. The investigator should also try to assess the credibility of both the alleged harasser and the alleged victim by seeing if their stories stay consistent throughout the investigation. Only after taking these steps, should an investigator make a determination which employee is more credible. Doing less than the aforementioned steps is injustice to the alleged victim and the alleged harasser.  

4. The Scope of the Investigation Changes Without Your Knowledge  – I have seen several company investigations were the original scope of the investigation expanded without the accuser being notified about the increased scope. For example, an employee may allege that her boss called her vulgar names, touched her inappropriately, and demoted her after she refused to attend social events with the boss. The investigation report then comes back not sustaining any of the employee’s allegations because it came down to a “he said, she said”, but then continued with new “factual findings” against the accuser that substantiated that the accuser violated several workplace expectations.  There is nothing in the law that prevents an employer from expanding the scope of an internal investigation beyond the original allegations. That being said, if you see that there are new allegations against you are false this maybe a sign of employer retaliation for you complaining about the companies star employees.

5. No Comparative Analysis is Done During the Investigation – Not asking the complaining party to identify others not in their protected classification who have been treated differently can be a significant failure for any internal investigation. Often I see that investigator focus on just whether an employee violated workplace policy without seeing if other employees had violated the same policy. This can be a big red flag if you see that your internal investigation contained no comparative analysis. Without the comparative analysis, an employer can turn a minor violation of workplace policy into a major one. The comparative analysis is the check against the employer overzealously prosecuting an employee they want gone. The comparative analysis provides more context to what violations at work happen often, versus ones that are really “serious.”

Conclusion: Just because an employer makes an employee look bad through an internal investigation, does not mean that the employer will be able to prevail in a lawsuit or legal claim. If you feel like you have been subjected to a sham internal investigation based on the above five factors you should contact an attorney immediately.

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