Investigations are stressful for an organization’s leadership. But what is often overlooked is that they are stressful for an organization’s employees as well. The need-to-know nature of internal investigations usually restricts knowledge of the investigation’s character, scope, and potential consequences to a relatively small circle of senior management. But the employees who fall within the scope of the investigation will often know little about what’s going on, which can generate anxiety, impair morale, and create tensions in the workplace, further leading to negative repercussions for the organization that persist long after the investigation has been closed.
For most employees, their first awareness of an investigation is either through receipt of a litigation hold notice or an instruction to meet with the organization’s counsel. The employee will likely have received only a thumbnail summary of the nature of the investigation, which can leave the employee with more questions than the organization is able to answer, increasing workplace stress and anxiety. Interviews typically begin with an UpJohn warning—fa notice to the employee that the lawyer about to question them is not their lawyer and that anything they say can and may be used against them. Again, stress. The interview may cause the employee to question whether the organization suspects them of wrongdoing. The employee may question the conduct or integrity of their peers or supervisors.
After the interview, the employee returns to the workplace knowing, or at least suspecting, that counsel also interviewed their coworkers and wondering what they said. But, of course, counsel has instructed the employee not to discuss the subject matter of the interview with anyone. In other words, the investigation becomes the elephant in the office. In the absence of information, human nature will lead employees to fill in the blanks with what they know or believe they know. This very human tendency often leads the employees to conclude the worst. The resulting anxiety can damage morale and reduce productivity. Some employees may even choose to leave for a competitor.
What can be done to mitigate these collateral consequences of an investigation? One approach is to conduct a closeout debrief. A closeout debrief can serve to bring closure for employees, relieve anxiety, and restore trust in the organization. The concept is quite simple. The debrief occurs after counsel is comfortable that they have determined the facts, but before the investigation is formally closed. The debrief affords counsel and opportunity to review and confirm or correct information the employee provided. As such, it is a privileged communication. But it also provides an opportunity to inform the employee that the investigation is at or nearing its conclusion, express the organization’s appreciation for the witness’s assistance, and answer questions or provide assurances the organization was unable to offer earlier in the investigation.
This is not to say that counsel should share the entirety of their investigative findings. There may in fact be very little factual information that can be shared with employees. But even where little or no factual information can be shared, it can be tremendously reassuring to an employee to learn the investigation has been concluded, their cooperation was helpful and appreciated, and they are not at risk. Even where the investigation reveals misconduct that warrants terminating one or more employees, or other corrective action, the closeout debrief can be an opportunity to reassure employees who are not at risk of termination. A benefit of bringing closure to an investigation for employees is freeing them from the “sword of Damocles” that an ongoing investigation can feel like and allow them to breathe a sigh of relief.
The decision whether to conduct a closeout debrief and what to disclose is highly fact-specific. A close-out debrief will not be appropriate or feasible in every case or for all interviewed employees. But in our experience when conducted under the right circumstances and in the right way, the closeout debrief can help restore employee trust in the organization and in one another, relieve anxiety, restore morale, and increase productivity. It can also help reduce the risk that an employee will turn into a public whistleblower. In one case, for example, we were able to reassure the employee whose complaint had triggered a broad investigation, that contrary to her fear that she would be retaliated against, the organization agreed that she was right to raise her complaint and appreciated her willingness to do so. We could almost see the stress and tension drain from her.
The closeout debrief can also provide an opportunity to address operational weaknesses that contributed to the problem or create a risk of future problems. Lack of communication or weak management can create the conditions that cause employees to misinterpret company actions and intentions. We have seen erroneous allegations of misconduct arise from lack of communication or trust among employees or between employees and supervisors. The closeout process can provide an opportunity to address those underlying problems and implement measures to prevent them from recurring.
In sum, for CLOs, CCOs, and experienced senior management, internal investigations are simply a sad reality of corporate life. But for employees, an investigation can be a traumatic one-time event, which can undermine the quality of the employee’s work experience and burden the organization’s operations. Although the needs of an investigation require that the organization limit the information it discloses during the course of an investigation, the closeout debrief can afford an opportunity to restore the trust between it and its employees and reaffirm to them the organization’s values and commitment to compliance.