 |
MANAGEMENT
PRACTICES
GROUP Internal Investigations, Education, Consulting and Expert Witness Services |
||
|
News
& Features
|
|
Services:
Workplace Investigations Organizations have long engaged in some form of internal fact-finding, of course, but it has largely been for such matters as preventing or detecting theft, deterring internal fraud, or getting to the bottom of minor employee misconduct. Such investigations have tended to be rather informal, of limited or narrow consequence, and have often been conducted by internal security departments or detective agencies staffed with ex-law enforcement or military personnel.
New regulations like Sarbanes-Oxley have changed the nature and importance of internal investigations. SARBOX, for example, has focused regulators’ attention on much more exacting internal compliance auditing and well-informed critical self-examination than ever before. New media and public interest in corporate governance matters has also substantially raised expectations about what entities like the Board of Directors should do (and how they should do it) to obtain accurate, reliable information in connection with important decision-making like executive compensation or terminations. The growth of judicial scrutiny and the ever-increasing size of jury verdicts have also made effective fact-finding and analysis mandatory in many litigation contexts. These particularly include claims for harassment, discrimination and retaliation, as well as certain shareholder lawsuits. Most recently, significant judicial broadening of legal prohibitions on retaliation against whistleblowers and other employee complainants has also substantially raised the bar for accurate, thorough internal information-gathering and informed organizational decision-making. In short, regulators, prosecutors, lawyers, judges, juries, shareholders, consumers and the general public, not to mention the news media, are all now willing – and certainly very ready - to second guess corporate decision-making, the information upon which it relies, and the way in which the information was obtained. As a result, an organization’s ability to gather adequate, accurate, objective and truly factual information – and to do so promptly, fairly, and ethically - has become critical to business success. Organizations face a number of problems in coping with the new demands. First among these is the difficulty of recruiting and deploying investigators with the requisite type and level of skills. The new investigations require investigators who have a high degree of analytical ability, good judgment, and integrity, but also a substantial amount of softer skills or “emotional intelligence.” To be genuinely effective, the “new” investigators must be persistent and tough-minded, but also personable, fair, and capable of obtaining candid, often sensitive information from many different types of people. They must also be able to accurately assess a wide range of human behaviors and communication styles. As investigators are increasingly called upon to deal with the media or appear as witnesses in regulatory or court proceedings, they must also be extremely articulate and precise, but also able to communicate easily and credibly at a variety of levels. Investigators must also possess significant ability to apply abstract and complicated concepts – like what is or isn’t “ethical conduct” or what is or isn’t an “invasion of privacy” in the modern workplace. Many investigations also require specialized business and legal knowledge. Others demand that investigators not only be impartial and independent, but that they can also deliver a persuasive appearance of impartiality and independence to potential after-the-fact criticism of key organizational fact-finding and decision making. Even today, most organizations can handle routine or lower-level fact finding, and even many investigations, using internal legal, human resources, security, or compliance personnel. For many of the new higher profile or more complicated matters, however, few organizations have the ability to employ sufficient, competent and experienced fact-finders internally or, even if so, to hold them available to perform prompt, thorough internal investigations as and when needed. Moreover, even if an organization is capable of maintaining the requisite qualified in-house investigators, sometimes the circumstances do not permit – or, at least, do not appear to permit - effective, impartial fact-finding from within. This happens, for example, when the person or persons whose conduct is being investigated or whose judgment is being challenged is so highly placed or prominent in the organization or in the public eye that unbiased internal evaluation is, or at least might seem to be, unlikely or impossible. Another problem that arises when organizations try to use insiders for other than the more routine or uncomplicated investigations is that of authority within the organization. If an-house investigator occupies a position lower in the corporate hierarchy than the individual being investigated or the witness being questioned, common sense (and experience) indicates that the investigator or the investigation may be given short shrift or that the demands of the investigation, such as persistence and tough-minded interrogation, may not be fully realized. On the other hand, if the individual in charge of the investigation is too senior or prominent, it is not unrealistic to expect that employee witnesses, particularly managers, will be reluctant to disclose in full candor information that makes them look bad or that risks short-circuiting their own ambitions. As a result, most organizations are turning to outside providers for some or all of their more important investigations. Some have gone to private detective and security agencies, others to law or accounting firms, and still others to prominent individuals or blue ribbon panels or task forces. All of these resources offer certain advantages. They also offer a number of disadvantages. Most are, of course, inordinately expensive. To be candid, employing a services firm that hopes to establish an on-going, long-term relationship or to sell other services can also risk opening the door to an unduly extensive project or service relationship. Some outsiders, such as detective or security agency investigators, may lack sufficient knowledge of key business or legal concepts to be entirely helpful. (“Privacy” is one such concept that springs to mind after Hewlett-Packard’s unfortunate investigation experience last year.) Even those such as accounting or legal firms, which at least possess a high degree of business or legal sophistication, present disadvantages. Conflict-of-interest rules may preclude their service as investigators in the first place, or, on the other hand, prevent them from subsequently offering their regular legal or accounting services to the organization they investigated. Regular vendors or providers of such services to a given organization, in fact, have encountered substantial difficulty in maintaining the necessary appearance of independence and impartiality. Regulators tend to look askance at such investigators, for example, and quite a number of juries have refused to credit lawyers or accounting firms who have previously served an organization (or may wish to serve the organization in future) with the impartiality necessary to achieve a proper investigation. Such professional firms may also lack sufficient mature and experienced personnel, or even necessary specialized experience in the type of investigation being considered. In addition, and, of course, with all due respect, some lawyers, accountants, or other professionals seem to lack the softer skills necessary to achieve an effective investigation in certain types of situations. Fortunately, as the new type of investigation has developed, so have a new type of investigator and a new type of investigative organization. Management Practices Group is such an organization. MPG investigators are experienced former employment and business attorneys; they understand the legal and business concepts that must be applied in such cases. They are tough-minded and analytical, but possess substantial emotional intelligence and soft skills. MPG investigators are published authors and teachers concerning a variety of matters such as workplace privacy or what employers need to do to prevent or correct retaliation and the appearance of retaliation after employee complaints or whistleblowing. That is, they understand the concepts they are investigating. MPG investigators are court-qualified expert witnesses on many of the matters they are employed to investigate as well as on how to conduct fair, accurate, and thorough internal investigations. Not only do MPG investigators know where to look for information but they know how to get the information they need by ethical, fair, and appropiate means. MPG investigators have earned the confidence of judges, juries, litigants, and witnesses as to their independence and integrity. So when is the new type of fact-finding or investigation necessary – and when should you consider MPG as your independent investigation provider?
Special note regarding cross-cultural and cross-border investigations:
Many of the
“new” investigations described above occur in organizations with a
significant workforce mix of employees of differing nationalities,
languages, cultures, and work/life experiences.
Many others occur in multi-national or global organizations where
parties, witnesses, managers, and other necessary investigation
participants not only possess significant linguistic or other differences,
but who also live and work in different parts of the world and are
subject to different laws and legal systems and to differing cultural
norms and values. While
neither MPG nor any other organization can purport to be expert in each
and every specific legal, cultural, or linguistic tradition, MPG
investigators and staff are
particularly experienced with and interested in cross-cultural and
cross-border matters. Each
of our staff members has lived or studied abroad, speaks one or more
languages besides English, and possesses (and maintains) significant
travel experience. Our
investigators actively participate in a variety of international
management and legal organizations and regularly present their expertise
in speeches, workshops and panels around the world. We
operate as a “home base” from both
MPG also offers education, both Executive and Board level briefings, and multiple-day how-to boot camps for internal investigators, on planning for and conducting ethical, legal, and effective internal investigations.
For more
information, or to request a copy of our white paper on “Best
Practices in Conducting Internal Investigations” please contact
Click here to return to top of page. Click here to return to Services menu.
|
|