By Andrew Singer
While it is difficult to gauge if corporations have been conducting more internal investigations these days, most agree that the stakes associated with such investigations have risen.
The Dodd-Frank Act of 2010, after all, provides strong financial incentives for employees to report wrongdoing externally if they believe their complaints are not being heard.
When allegations are made, therefore, it behooves an organization to look into matters quickly and thoroughly, says Andrew Foose, vice president of the Ethical Leadership Group, part of NAVEX Global (Portalnd, OR), and a former Department of Justice (DoJ) trial attorney.
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Ways to make assessments
Investigators should know that they can’t simply give up if and when they are confronted with a “he said, she said” circumstance, for instance. There are ways to make assessments, Foose tells Ethikos. For internal investigators, “credibility determinations are an important part of the job.”
Look at an interviewee’s demeanor, for instance. This encompasses more than just body language. It takes into account an interviewee’s word usage, tone of voice, and rapidity of speech. Did the interviewee go from speaking slowly to speaking more rapidly?
With regard to demeanor, there are no hard and fast rules, suggests Foose. You can’t assume that someone is lying because he/she doesn’t look you in the eye. That individual might just be shy.
That’s why experienced investigators often begin an interview with easy questions, asking about the interviewee’s company background, say: “How long have you worked at XYZ Corporation?” The answers to such queries are already known—the investigator has done his/her homework prior to the interview, after all. The idea here is to observe the subject and to establish a baseline for comparison purposes.
Does the individual look the investigator in the eye? Does the person speak quickly or slowly? Later, when the questions bear more directly on the matter at hand—are more threatening, potentially—does the subject’s demeanor change? That person who had been answering questions with such assurance is now pausing four to five seconds before answering—why? Here the investigator may want to push the subject to be more explicit —which may bring clarity and understanding but could also give rise to a contradiction, undermining credibility.
A lot of psychology is at play here. “A lot of listening carefully and watching carefully,” says Foose.
There are other factors that investigators use to determine credibility. One is inherent plausibility. Does the story make sense—does it ring true? Are there contradictions in the story?
Another is corroboration. What does the rest of the evidence say, i.e., does it support the interviewee’s accounts?
Another factor is motive. Could the individual be telling a tale to get out of trouble? To protect a friend, protect a boss?
An interviewee’s past record is a fifth factor. Does the individual have a history of raising complaints? Have complaints been raised against this individual in the past—suggestions of fudged sales numbers, for example, or allegations of sexual harassment?
Some less experienced investigators may feel uneasy using these criteria, acknowledges Foose, especially demeanor. But these are the sorts of judgments that people make all the time. When we meet someone at a party, we often quickly assess whether he/she is credible, worthy of our attention. More critically, it’s what we ask juries to do—and they have no professional training at all. “Listen to their story, see if it makes sense” juries are instructed by the judge. “Be mindful of motives.” Is someone testifying because they are getting a plea bargain? Is an expert witness being paid?
There are several other do’s and don’ts that a company should keep in mind when conducting internal investigations, according to Foose.
If you are using your own staff to conduct the investigation—as opposed to an outside law firm, say—make sure that investigators have received effective and consistent training and are provided with clear guidelines and protocols. You don’t want an investigator in one part of the company performing differently from an investigator in another sector. The quality of internal investigation varies enormously at some companies, depending on who does the investigation.
Foose recalls one firm, for example, where a senior investigator “had not reached a conclusion in an investigation in eight years.” When he heard of this, Foose was “stunned.” There was no standard approach vis-à-vis investigations at this company.
At another organization, he recalls, investigative reports were restricted to a single page of paper. There was no analysis—nothing, in fact, to demonstrate any investigatory rigor. If such an investigation was ever challenged in court, the company would face problems, suggests Foose, who at DoJ litigated numerous cases against employers. (Indeed, he brought one of the department’s first “pattern or practice” sexual harassment cases.)
Data analysis of cases as they accumulate in the case management system is also becoming more common these days. In mining data, patterns often emerge. Has one type of non-compliance or misconduct come up more often than another? This may happen if employees don’t really understand an issue (which would suggest more training might be needed) or if the policy itself is too vague. Or it could be that one company department or regional office has a problem. Or one investigator may be slower than the others (maybe his/her caseload is too large).
Data analysis is advancing rapidly. With the latest, relatively inexpensive software, it’s easier to track cases and discern patterns. This brings with it additional responsibilities. In reporting to a company’s audit committee or board, it’s often no longer sufficient to say, ‘We had “x” number of [ethics and compliance] cases.’ Boards now want to be informed about patterns found in cases, any emerging trends, and potential risks and consequences.
With increased FCPA enforcement, and more global anti-bribery activity, like the UK Bribery Act, companies are increasingly attuned to potential overseas misconduct. Is it more difficult to investigate overseas? Yes, it is, answers Foose, for several reasons. First, there are a variety of laws and protections that pertain to company employees. There are extensive privacy protections in Europe, for instance. It can be more difficult to force employees to meet with you, the investigator, for example, or to monitor an employee’s email. Second, there are often more “sunshine” rules with regard to the results of an investigation. A company may have to share the results of an investigation with all employees in the organization.
Sometimes overseas investigations must be conducted in physically dangerous locations—such as certain regions within Pakistan and Mexico. A company recently came to Navex Global, for instance, and asked it to conduct a bribery investigation because that company feared a local investigator looking into the matter might come to physical harm. That company elected to farm out the investigation.
Language, too, can be an obstacle. Nuance is often lost if an investigator doesn’t speak the local language. In such instances, “You need a quality translator,” says Foose, one who won’t ‘clean up’ responses or round the edges—who will translate what is said literally, without adornment.
Companies often like to use their own employees, often from headquarters, in investigations, even overseas, because they believe those operatives are better equipped to understand the underlying issues. Often, however, they do not speak the local language. One alternative: pair the investigator from headquarters with an overseas investigator who speaks the language and conducts the actual interview.
One common mistake that companies make in investigations is failing to ensure that the investigator seeks out all existing evidence. Instead, the investigator attempts— consciously or subconsciously—to protect the organization from a bad outcome, like a confirmation of bribery.
It’s often human nature to want to protect the organization, but investigators have to recognize that they are detectives, not protagonists, says Foose.
Let the chips fall
“This is their job, and they should take pride in it—and let the chips fall where they may,” says Foose.
For this reason, corporate counsel may not be a good candidate to investigate a bribery allegation. That individual’s normal role is protecting the company—in a legal capacity. Employees may be less forthcoming when interviewed by internal counsel. The ethics and compliance or the security officer (lawyer or non-lawyer) might be better alternatives. “You need a [relatively] neutral person doing it,” says Foose.