Surge in Outside Workplace Investigations in #MeToo Milieu

Bloomberg Law
Surge in Outside Workplace Investigations in #MeToo Milieu
By: Kodichi Nwankwo

Workplace investigators are staying busy in the #MeToo era as companies increasingly look to third-party investigators to handle claims of harassment.

“Everyone I know in this field is busy,” Keith Rohman, president of the Association of Workplace Investigators said.

Rohman, who has investigated many high-profile cases, said he’s tried not to turn down work in his 30 years on the job. But in the wake of #MeToo, he’s had to, he said.

People who may not have complained in the past are feeling empowered to come forward now, he said. But others may not have a legitimate complaint and are filing cases for the wrong purposes, he said.

Companies too are dealing with how to maintain the perception that they are both neutral in their investigations and taking effective action.

“If you are investigating a claim against the CFO or the CEO of a company, it is hard to find somebody within the organization who has sufficient independence from that person to be able to do a neutral investigation,” Rohman told Bloomberg Law. “And even if they can do an investigation, will the investigation be perceived as neutral?”

Boost to Credibility
As a result, companies often may outsource to third-party investigators to increase credibility.

That’s been the experience for Amy Oppenheimer, founder of Law Offices of Amy Oppenheimer, which focuses on workplace investigations and training.

People have been more inclined to bring somebody in from the outside to do an investigation, Oppenheimer told Bloomberg law. Cases that might not have been seen as serious before might now be perceived as significant, Oppenheimer said. Many employers increasingly want an outside set of eyes, she said.

Howard Kurman, principal and employment attorney at Offit Kurman in Baltimore said his practice is also busy because companies lack expertise.

Large companies aren’t the only ones hiring third-party investigators, Kurman said, noting that he has represented employers with as few as 20 workers. Employers decide whether to bring someone in based on the facts and circumstances of a particular case as well as the skills and expertise of the internal staff that may conduct the investigation, he said.

“Some companies may be too small to have a sophisticated HR component or in-house capability to conduct an investigation,” said Kurman. In that case, they would need to hire an outside investigator, he said.

Assessing Cost
Whether an investigation is outsourced or kept in-house, once a claim is filed, the next step is to interview all parties involved.

“You would interview the alleged victim and the alleged perpetrator,” Kurman said, “because in this day and age, you certainly want to afford the alleged perpetrator due process right of being interviewed.”

Next, Kurman said, the investigator would identify and interview witnesses and review relevant documents that the company may have, keeping in mind the length and the cost of an outside investigation.

Most attorneys bill by the hour, he said. “Lets just say it was $400 dollars per hour and the investigation took 20 hours. If you do the math, you might end up with an $8,000 bill,” he said.

“I have had investigations that last two to three days and I have had investigations that may last two weeks because of the number of witnesses I have to interview,” said Kurman, who has done hundreds of investigations.

But most investigations can be done within a single work week, he said.

Outside Investigations Not the Only Answer
Not all sexual harassment claims rise to a heightened level of seriousness, and seeking an outside investigator may not always be the best answer.

Oppenheimer, who has 30-plus years of experience in employment law and investigations, said only about five out of 100 claims rise to a high level of seriousness.

A screaming boss or a co-worker who undermines colleagues, for example, may not have a claim that qualifies as sexual harassment under federal law.

Employers can do more to evaluate the potential seriousness of allegations before launching into an investigation, Oppenheimer said.

Companies need to have multiple ways to deal with workplace investigations, Oppenheimer told Bloomberg Law. “Is someone saying something rude that might be misinterpreted?” If so, then the next step may be a one-on-one with the complaining employee or mediation.

“We want to catch the serious ones and deal with them immediately with the level of seriousness that they deserve,” she said. Less serious claims can take time away from investigations that are more consequential.

In-House Investigation
Employers may also want to do their own investigations in-house.

“The issue is companies lack a real standardized tool in place,” Dana Barbato, CEO and founder of InvestiPro, told Bloomberg Law.

Unless the claim is about a very high level executive or a member of HR, employers can do their own investigation using a standardized tool, in most cases, Barbato said. InvestiPro is an online employee relations platform that offers an automated workplace investigation system.

“Having a standardized system in place really makes it transparent the way the process works and that way, there is less feeling of a cover up as long as you are using that consistent process,” she said. “The problem comes in when there is a different process.”