As we all know, internal investigations are a pillar of effective compliance programs. However, in speaking to in-house counsel and Chief Compliance Officers – not to mention our own in-house experiences - we often hear concerns about employee confidence in internal investigations. Sometimes, the concerns surround a perceived lack of independence in the process. Or the concerns come from a lack of transparency, or that retaliation fears prevent people from coming forward with reports.
Attention to the issue is well-placed – robust reporting and follow-up are key to any program, which the Department of Justice clearly recognizes in its recently updated Evaluation of Effective Compliance Programs. Indeed, the guidance has three separate categories of questions that focus on internal investigations, covering when to investigate, who should investigate, the timeliness of investigations, and the results of the investigations. While each company will have different approaches to reviewing potential policy and regulatory breaches, we offer five steps that companies can take right now to enhance workforce confidence in internal investigations.
1. Offer Multiple Reporting Channels
Employees are comfortable lodging concerns in different ways. Some may prefer the traditional anonymous hotline call. Others may prefer email, messaging, or internet drop-boxes. Some may prefer to contact external resources, such as ombudsmen or outside counsel. Others may want a face-to-face conversation. Offering and publicizing multiple pathways of reporting, and providing guidance on the kinds of details that make reports most effective, signals that the company encourages its workforce to identify meaningful concerns. That, in turn, helps increase confidence in the process.
2. Publicize the Company’s Investigation Approach
Create a written investigation approach that identifies the steps that are taken when a concern is lodged. This demystifies the investigation process and creates a set of workforce expectations against which investigations can be judged. That document can be published internally (on the intranet or in trainings, for instance), and sent to reporters when concerns are made. A transparent investigation approach reduces the risk that employees will view the investigation process as unfair, opaque, abusive, or unduly subjective.
3. Embed Independence in the Process
Consider ways to build independence into the investigation approach – independence being a proxy for perceived fairness. That may be by using investigators who are external or unrelated to the unit in question. Or it may be through investigation oversight from independent resources. One effective strategy can be establishing an independent “compliance committee” – a small group of external compliance experts who can provide guidance on internal investigation approaches, review investigation conclusions against the written investigation approach, and serve as a resource to senior management or the board.
4. Engage With Investigation Participants
Direct engagement investigation participants also can be helpful. For instance, when a report is made, advise the reporter of the names of the investigators, the company’s position on retaliation, and who to contact if they believe there is retribution. Check-in with reporters every two or three weeks to provide updates on the status of the investigation, and inquire as to whether there is further relevant information, concerns about retaliation, or questions about the process. After an investigation, provide reporters and witnesses with brief anonymous surveys to gain insights into the nature of their experience, and whether they have constructive feedback. Continuous engagement and input from investigation participants can help provide confidence in investigations, gain buy-in, and provide meaningful insights for improvements from their first-hand experiences.
5. Publish Metrics and Outcomes (Mindful of Competing Challenges)
Publish internally a range of metrics related to reporting and investigations, showing that reported concerns are addressed and lead to clear outcomes, benchmarking the metrics against public independent reports to establish context. That might include the total number of concerns for the calendar year, the past 12 months, and the past 3 years. Break them down by reporting channel; country or site of origin; type of allegation; whether the reporter was anonymous; whether the allegation involves a manager or supervisor; reporter follow-ups; and the reporter’s relationship to the company. Focus on substantiation rates according to similar categories, and ranges of discipline. While you may not be able to identify specific investigation outcomes because of privacy concerns, groupings are a good way of creating anonymity while demonstrating the process is real.