/>iMember Jen Rubin is joined by Member Natashia Tidwell for an unscripted conversation about conducting effective workplace investigations. This episode is part of a series of conversations designed to help employers navigate workplace changes and understand general legal considerations.
Together, Jen and Natashia explore:
- What “investigation” really means in the workplace context
- Credibility, objectivity, and the role of outside investigators
- Internal versus external resources and knowing when to bring in help
- Investigation scope, mistakes, and communication gaps
- Key takeaways on transparency, follow-through, and building trust
Listen for insights on when to engage an external investigator, how to maintain trust and confidentiality, and why clear communication and scope-setting are critical to the success of any workplace investigation.
Practical Policies - Investigations Unscripted Transcript
Jen Rubin (JR): Welcome to Mintz On Air, the practical policies podcast. Today's topic: Investigations Unscripted. I'm Jen Rubin, a Member of the Mintz Employment Group with the San Diego based bicoastal Employment Practice representing management, executives, and corporate boards. Thanks for joining our Mintz On Air podcast. If you have not tuned into our previous podcasts and you would like to access our content, you can visit us at mintz.com or on Spotify.
Today, I'm really happy to be joined by my Boston based colleague, Natashia Tidwell. Natashia is part of our Litigation Practice, but frequently works with my group, the Employment Practice, as well as other practices across Mintz including the Health Care Defense, Intellectual Property, and Corporate Practices, because she’s an expert in investigations. Investigations are something that come up in all aspects of corporate and employment life. It is very important that we have somebody who knows what they're doing at Mintz, and Natashia is that person. Thank you, Natashia, for joining us today.
Natashia Tidwell (NT): Well, thank you, Jen, and I hope I can live up to that introduction.
Defining Investigations: What Does It Really Mean?
JR: Today, I'm calling this an unscripted conversation, because a lot of people hear about investigations, and they have no idea what we're talking about. Part of that is because it runs the gamut of big, extensive investigations involving a lot of people, and even small investigations. I want to start by asking you this question, Natashia: What is an investigation? When you use that term, what do you mean?
NT: Great question. A seemingly simple question, but I'm going to give the lawyer answer: It depends. A lot depends on who the intended audience is, what the subject is, who's asking for it, but I'd like to think it boils down to finding an answer to the universal question: What's up with that? Anytime that question lingers or arises, then you need an investigation, and you can call it a review, an inquiry, an audit, an investigation — all depending on the intended audience, who's asking for it, and who's going to get the results of it.
JR: Pulling that thread for a moment — what's up with that? Where does that question typically come from? Why does that question come before somebody like you for an answer?
NT: We all see things or hear things or come across things and wonder: what's up with that? If you’re an executive in a company, the head of a municipal agency, or if you're in a hospital where something unexpected happens and the people around you are thinking, “Hey, what's up with that? How did that happen? We need to figure out how this could have happened because it's never happened here before. Or it's happening with such frequency that we need to dig in and figure out why it keeps happening.”
Credibility, Objectivity, and the Role of Outside Investigators
JR: Toward that end, can anybody do an investigation or is this something that has to be driven by a lawyer? Why would a lawyer be important when you're asking that question: What's up with that?
NT: As a lawyer, I'd like to say, yes, you definitely need a lawyer to do that. Many times, it comes down to the credibility of your investigation, particularly when you're thinking about your intended audience or the intended effect of the inquiry or review that you're conducting. Both from just a credibility standpoint — if you've got a lawyer that has investigatory experience or, as I do, experience as a federal prosecutor and as a police officer, sometimes there's an advantage. People, right or wrong, attach some measure of credibility to that experience, background, or particular skill set.
JR: Let’s go back to this notion of credibility. I'd like to think that all lawyers are credible. No lawyer jokes here, okay. You were a police officer, a prosecutor, a lawyer, you're a trained investigator. To me, somebody like you is naturally credible. How do you bring that notion of credibility into an investigation?
Anybody who's listened to my podcast knows that I have this fascination with the concept of trust in the employment relationship in particular, because I think it's so important to people to feel like they can trust others in the workplace and others can trust them. It goes directly to this credibility concept. How do credibility, professionalism — how do all these things drive trust and that feeling of being able to rely on a person to carry out important tasks?
NT: Trust is important, but trust and verify. A lot of times when I get a call, and many, if not all the investigations that I do are types of external investigations. I don't have a list of clients who whenever there's an issue in their organization that I'm advising them in an advisory role the way you might as their employment counsel.
I'm usually called in because they want an outside view or perspective, or they want to, in some way, communicate to their employees, shareholders, or to others that they’re taking the issue seriously. And to that end, they're using my background and my credentials to communicate the seriousness with which they take it, but also to communicate that this is a credible investigation. This investigation is going to be robust and transparent. They’re going to turn over every rock or do everything that we can to get the answer to the question, “what's up with that?”
JR: Building on that, having an outside investigator — whether it's a firm or an individual — come in tells whoever is being investigated — whether the audience is the person being investigated or the board — that the investigator has no stake in the outcome, I assume.
In other words, you don't go in thinking, “I'm going to find a certain way because X, Y, and Z consequences are going to flow from that” versus “I'm going to go in and have an open mind to understand what's up with that. And I have no stake in the answer.” What do you think about that concept?
NT: I think that's right. People expect or want objectivity from an investigator. When I walk in, I don't know anyone here. I have no stake in the outcome. I don't have the benefit of knowing Joe's reputation in the organization, good, bad, or indifferent, or the esteem others hold in him. I'm treating everyone as if I've just met them, because a lot of times I've just met them.
I've got a company's policies, procedures, or the way of doing things, and then I'm meeting these people and just based on experience, interviews, interrogations, and my work over years of investigating. I'm putting together questions or making credibility determinations of people that I'm talking to but taking them at what I see and not with all of the — for lack of a better word —baggage that might come with somebody who's been working with these folks, who's been immersed with them, who's friendly with them or not friendly with them. I'm a blank slate in that way.
JR: And somebody who is not going to be doing their performance evaluation. When you're an independent outside investigator, your results are not driven by the adulation that's going to come as a result, or the increase in your pay, or whatever it may be.
NT: It's usually the opposite of adulation when I'm done.
Internal vs. External: Knowing When to Bring in Help
JR: I have a question because this comes up quite frequently as an employment lawyer. We have situations arise in my clients’ workplaces on a fairly regular basis where sometimes people don't know whether something has occurred: “Can I ask our human resources professionals to find out what's up with that? Or should I go to an outside investigator who has no stake in the outcome or doesn't know these people?”
I realize this is somewhat of an unfair question because it's got to depend on the context. But can you give a little guidance as to how you know you need to bring somebody in from the outside to look at something?
NT: Selfishly, I'll say you always need someone from the outside. But to bring it back to the Potter answer on obscenity, you know it when you see it in a lot of ways. I would say that if your CEO and your HR head are on a kiss cam at a Coldplay concert, then you probably need an outside investigator.
Anything similar to that or touching upon that, or if you've gotten a government inquiry of some sort that takes it out of the employment context, usually this relates to some other compliance type issue.
There are situations where you want not only someone who's going to figure out what's up with that but also be in a position to pivot and interface with the government on your behalf. In the employment context, it is typically people who behave badly, but other times in preparing for a sale, you want to do due diligence. If you’re getting in front of a government inquiry, you want to figure out what's up with that, and it's better to have somebody external do that than someone from within.
JR: Here's an equally unfair question for you, Natashia: How do you maintain confidentiality of investigations? This really is a very unfair question, but it's an important question because in this day and age, how long does it take you to film a TikTok video sitting at your desk to talk about the investigator who just came into your office to ask about X, Y, and Z? How does an investigator ensure, and I'm sure that's the wrong word, the confidentiality of the investigations they're undertaking?
NT: It is a tough one. It's gotten tougher in the remote space because there used to be a time when I would just travel everywhere to do in-person interviews of everyone, and you could control your environment a little bit more than you certainly can now.
But you're right. You don't know as much as you advise and ask and request and beg, “Please don't record me,” whether it's a single-party consent state, or “Please don't share what we've talked about with anyone else because we don't want anyone to have the test questions in advance.”
You can do all of those things and people are going to do what people are going to do. Part of the selection of an investigator is that credibility and/or gravitas — as it were — to come in and say, “These are the rules of engagement we need in order to protect the integrity of this investigation because this is important to the company. It's important to you as somebody who's here. We want to protect the integrity of this investigation. To do that, we need you to keep your mouth shut and not post this on TikTok.”
And it works for the most part. I can tell when someone has gotten the advance word that I asked tough questions or that I may have done my homework or I seemed friendly — I never get that feedback — but it may be the words out as to my approach or the areas of inquiry. I find for the most part that if you come in as somebody who has air of “I've been doing this a long time,” you've got that credibility — to go back to the word that we've talked about before — that people will maintain confidentiality.
JR: You would hope that credibility and professionalism build trust so that people realize, maybe they should abide by these instructions. They’ve been asked to keep it confidential. They know deep down they are going to use — my favorite term as an employment lawyer — good judgment with respect to what they’re going to do with the information. You would hope that good judgment is exercised.
Of course, if it were exercised always, I would be out of work, and you might even be out of work. But in any event, we don't want that to happen.
Let's pivot and talk about some of the mistakes that you see in conducting investigations.
Investigation Scope, Mistakes, and Communication Gaps
NT: What I have seen from other people is a failure to set expectations or define scope from the beginning. You think there is going to be a meeting of the minds and that everybody agrees on what this investigation is going to be about. That can come back with mission creep, where someone who's conducting an investigation of what you think is Issue A.
You know, “What's up with Issue A?” You find out as they've questioned witnesses, done interviews, or requested documents, that they are looking to see what's up with Issues B, C, D and E. From a company's perspective that can lead to budget issues if you’ve hired an outside investigator. You've now blown the budget when you were just looking to answer this discrete question.
From a company perspective internally, it can also damage your credibility as a leader of an organization when somebody who is leading that investigation — because initially you communicated that you were looking at one thing and now the investigator is seemingly running wild and asking about other things.
On the flip side, if you define the scope too narrowly or only want to look at Issue A, and Issue B is like a flashing red light siren that your investigator isn't even paying attention to, that’s a problem.
You need to have the trust that the person that you hire or your internal person, when they're looking and conducting investigations, is not ignoring any collateral issues that might come up, but is prioritizing the issue at hand. There are things that you can say, and you can alert people or people will notice, “While I was running down what's up with Issue A, I noticed that we might want to look into B, C, D, and E. It may not need to be a full-blown investigation of B, C, D, and E, but we should as a company be mindful of a potential compliance issue or some risk involved in those other things.”
You want your investigator to be nimble, but also to be disciplined at the same time.
JR: I like that. Nimble but disciplined. It also sounds like having good judgment as to communication, so going back to whoever has authorized you to do the investigation and making sure that they understand if it so happens that other things are uncovered, what the status is. Is that fair?
NT: That's right — and to whom you would report those things. There are times where it will be either the board or some executive committee of the board that's asked for the investigation. As an investigator, you uncover B, C, D, and E, the board might not be the audience for the report or for notifying those issues.
JR: Is there any particular method in terms of whoever authorizes the investigation, retains you, gives you the scope, and is responsible for giving you the direction. Any best practices there in terms of how that's done? You mentioned the board, and I think both of us have found that having a special committee sometimes is the best way to manage so that you don't have a lot of different voices in the room that aren't necessary to the investigation or for information control.
Can you provide any commentary on best practices in terms of who should be running point from the corporate perspective on these things?
NT: That's the number one pointer: Identify who's running the investigation. Who's my point person? Maybe it's a special committee of the board that has hired me, but there's got to be somebody internally, a trusted person inside who's going to manage outreach to witnesses, document production, all of those things. Identify who I’m communicating with directly and who is going to be the internal point person, if anyone.
If you're investigating something that deals with the General Counsel (GC) of the company, if the board is asking for an investigation of the GC, well, that gets tricky, right? Because now you've got the whole chain of command issue. Do you want those people to be involved in an investigation of their supervisor? Maybe, maybe not. Is there somebody — potentially an HR executive — who can stand in and be the internal point person for the investigators, even though the investigation is being run from the board level?
Key Takeaways on Transparency, Follow-Through, and Building Trust
At the beginning, you also want to identify the end deliverable. Who is that going to? Many times, companies don't want a written report. They want some sort of briefing, and who's going to be there for that briefing. But sometimes, you want and need to — from a transparency and from a trust perspective — communicate something to your employees or to other stakeholders about what just happened and the answer to “what's up with that?”
Setting that up at the front end — and these things can change over time; events happen — but at least at the front end, talk about scope, talk about who's managing the day-to-day, who's the internal point person, get that list together and get those parties in agreement on our plan going forward.
JR: It's interesting to me because one of the issues that continually comes up from my perspective as an employment lawyer is the investigation is undertaken and maybe that whether there's a draft or there's a presentation to the board or whatever the conclusion is, but there's no follow-up. Going back to this concept of trust — and to the people who either raised the complaint or were the subject of a complaint — not going back and adequately explaining what happened is a major gap.
Sometimes people conflate, “Hey, I can't go back and tell my employees X, Y, and Z because of confidentiality concerns,” or “I'm worried about the attorney-client privilege or whatever it may be.” There's always a way to say to somebody, “The investigation was concluded.”
It's interesting to me that sometimes the company will shy away from that because they're afraid to go back and tell people that the investigation was undertaken. But it may be that the most important thing that they do is put that period at the end of the sentence and tell people it's over, it's done. We're finished with this.
That's something that comes up all the time and it’s so important to have those conclusions. That is part of the credibility, professionalism, and trust — issuing those conclusions and making sure people understand that it is over and it is done with.
Even if there are other things that may arise as a result, at least the initial investigation — and making sure that's taken care of and squared away — whether or not recommendations are adopted, is really important.
What have I not asked you about, Natashia, that you think might be important for people to know?
NT: I think we've covered everything. I would just give people some guiding principles in terms of keeping an open mind — that, as you alluded to just now, transparency isn't a bad thing or a bad word.
Sometimes when I conduct investigations, it may be that there's no violation of any policy or procedure — and that's great news. But the investigation revealed that you've got some culture issues, or that employees or others are feeling discomforted by something.
It's better to get out ahead of that, or at least to acknowledge that you see it, because people want to be seen, and they want to be heard. You could go back to your employees, and you don't have to violate any confidentiality by talking about an employment action that was taken. You can say, “We recognize as an organization that these might be steps that we can take, or things we can do. We're going to have more office hours or more opportunities for people to speak up, or we're going to have town halls, or we're going to set a different tone from the top so that people do have an opportunity to be heard. What we understand from the investigation is that people feel as if their concerns are not adequately addressed or taken seriously. And we want to communicate that.”
And you can do that without revealing any confidences.
That transparency piece and closing the loop — doing what you said you were going to do at the outset and communicating that back to people — to me, those are the most important things that I try to communicate with any client or anyone who's asking me to come in.
JR: Well, that is well said. And now, Natashia Tidwell, I know what's up with that.
Thank you for chatting with me today. This has been really interesting, and I love doing this in an unscripted way. I hope that our audience has enjoyed hearing this discussion and taken away some of these practical tips and guidance for having a good, transparent, credible, professional, and trustworthy investigation. I'm Jen Rubin. Thank you again for joining. You can find our podcasts at mintz.com or on Spotify. Thanks again, Natashia.
NT: Thanks Jen.
