In my last blog, I wrote about different types of employee misconduct, other than harassment and discrimination, that may warrant an investigation; for example, conflicts of interest, time theft, fraud, and the disclosure of confidential information. I also wrote about the importance of investigating these other types of misconduct to minimize an organization’s risks and improve their internal controls.

In this blog, I focus on the differences between investigating human rights matters versus those that involve other types of employee misconduct.

Conceptually, all workplace investigations are the same in that they involve gathering evidence about certain events, and usually, drawing upon that evidence to reach conclusions about what transpired (i.e., making findings of fact). There are also fairness considerations that are observed across all workplace investigations, such as neutrality, timeliness, and confidentiality.  What may change, however, is the approach that we use to investigate.

Investigations into human rights issues generally arise after an employee complains about how someone in the organization has treated them. They either submit a written complaint, or they complain to someone internally. The complainant usually makes specific allegations about certain events that they say amount to harassment, discrimination, etc. Generally, the complainant can identify when and where the events arose, witnesses, and other relevant evidence, like documents.

For non-human rights matters, however, there isn’t necessarily anyone on the receiving end of the employee’s misconduct – for example, an employee who funnels work to a family member’s business isn’t directly impacting the wellbeing of another employee. What this means is that there may not be anyone who can describe fully what the misconduct is and the evidence that supports it.

Further, alleged misconduct in non-human rights matters is often disclosed through an organization’s whistleblower program or hotline. In fact, a large study by the Association of Certified Fraud Examiners found that 43% of fraud was uncovered through a tip from a whistleblower.¹ However, reports made through such programs can include very little information; the whistleblower may not possess additional information or they may be too afraid to provide it.

Practically speaking, this lack of information means two things. First, an organization may need to consider at the outset whether there is enough information to investigate. They will have to weigh the risk of not investigating, versus launching an investigation which could potentially tarnish the reputation of the respondent. Second, the investigative approach needs to account for this lack of information. If little is known about the alleged misconduct, a staged approach may be appropriate. By that, I mean that it may be appropriate to collect some evidence at the outset, and then re-assess the case to determine whether there is enough to continue investigating.

There are some other important differences between investigating human rights issues and other types of employee misconduct. The process for collecting evidence is one of these differences, as is the timing of the notification to the respondent about the investigation. I address each of these points below.

Collecting evidence

In human rights investigations, we generally follow a similar approach from one case to another to collect evidence: we interview the complainant, prepare allegations which we provide to the respondent, interview the respondent, and obtain other relevant evidence that we have identified based, typically, on the evidence of the parties. We also conduct reply interviews as needed.

In non-human rights investigations, however, the evidence collection process can be very different from one matter to another. The steps that are taken depend on various factors, such as how much information about the alleged misconduct is available at the outset, the nature of what is being alleged, and the potential sources of evidence. There may be, for example, many documents that the investigator needs to collect and review, including through a forensic document retrieval process, before interviewing anyone. As another example, if the alleged wrongdoing is very serious and there is little evidence to go on, it may be appropriate to begin the investigation by interviewing the respondent (not very common, but I’ve had to do this). The point is that the approach should fit the circumstances of the case.

Notifying the respondent

In human rights matters, respondents are typically notified of the investigation at the time the decision is made to investigate. It makes sense to notify the respondent at the outset because it eliminates the risk that they will find out about the investigation informally from others in the workplace.

In non-human rights matters, it is not necessarily the case that the respondent needs to be notified right away. The investigator may be able to do some initial work “behind the scenes” without notifying the respondent of the investigation. By behind the scenes, I mean that the investigator can collect evidence confidentially, without there being a risk that the respondent will inadvertently find out about the investigation.

The purpose of delaying the notification is not to be misleading or sneaky. It is, first, to avoid notifying the respondent unnecessarily that they are being investigated. The investigator’s initial work (e.g., reviewing documents) may be sufficient to disprove what is being alleged and may negate the need for further investigative steps; this is especially the case when the initiating report of alleged wrongdoing contains very little information. Second, it avoids there being a long delay from the time the respondent is notified of the investigation to the time that they are interviewed. Delaying the notification, then, is a way to reduce the impact of the investigation on the respondent.

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The main takeaway is that investigators need to be flexible with how they approach investigations – they must know how to adapt their process to the matter at hand. Organizations must also be mindful that the person they select to investigate is experienced in the subject matter of the investigation to ensure that the process will be suitable for what is being investigated.

¹ Association of Fraud Examiners, Occupational Fraud 2024: A Report to the Nations, at pgs. 23 and 26: https://www.acfe.com/-/media/files/acfe/pdfs/rttn/2024/2024-report-to-the-nations.pdf

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