by Patti C. Perez and Michael Clarkson, Esqs., Ogletree Deakins
Over the years, workplace investigations have taken on greater importance in the HR world. Now, with investigations routinely making headlines, they have become a part of our popular culture as well.
Most recently, the investigation conducted and conclusions reached on issues related to “Deflategate” have triggered national attention and controversy.
That’s the football controversy in which New England Patriots quarterback Tom Brady was set to be suspended—some say fairly, others say capriciously—for four 2015 games after evidence emerged that footballs had been underinflated during a playoff game last season. An underinflated ball is allegedly easier to pass.
The issues raised by Deflategate provide great lessons for those of us who routinely conduct investigations.
Unconscious bias
The public outcry over the results of the Deflategate investigation tends to focus either on one’s deep-seated love of or hatred toward Brady and the New England Patriots. Deflategate shows us that independent investigators cannot be swayed by personal feelings unrelated to the investigation.
If you are tasked with performing a workplace investigation and you know that you have a bias against (or in favor or) any party involved, you should recuse yourself. Remember: During an investigation—and when implementing corrective measures, if warranted—the perception of fairness is just as important as actual fairness.
Standard of proof
Is it sufficient—for purposes of a standard of proof—that the investigator found that it was only “more probable than not” that Patriots personnel deflated footballs and that Brady had at least a general understanding that this was taking place?
Yes. That standard of proof is taken straight from National Football League policies. “More probable than not” also happens to be the accepted standard of proof in workplace investigations.
Use of experts
The NFL’s Deflategate investigation team didn’t just rely on witness testimony, document review, site visits and video footage. It also asked experts to analyze whether environmental factors might have led to the deflation of the footballs in question.
Each investigation is unique. While all investigators should have a standard protocol, each new case necessitates the use of judgment. Who should be interviewed? In what order? Where should the interviews be conducted? What documents need to be reviewed?
Who else needs to be involved? In a traditional workplace investigation, the IT, security, legal and HR departments will be involved, as will others who have access to pertinent information.
The path each investigator follows should depend on the scope of the investigation.
Judging credibility, motive
Most investigations hinge to some degree on whether the investigator found a witness to be credible. Relevant to this determination may be, for example, whether there are reasons for a witness to lie or exaggerate, whether there are reasons for a witness to hide evidence and whether one witness is more credible than another.
Regardless of the public’s assessment of Brady’s credibility, both the investigator and NFL Commissioner Roger Goodell put substantial weight on how Brady handled his cellphone, finding that his actions negatively impacted his credibility. Goodell’s decision stated, “Mr. Brady willfully obstructed the investigation by, among other things, affirmatively arranging for destruction of his cellphone knowing that it contained potentially relevant information that had been requested by investigators.”
As independent investigators, it’s our job to review the evidence and determine whether it credibly supports the allegations. Making credibility determinations is a key part of that job.
Corrective measures
Much of the public outcry about Deflategate came down to the perception that the discipline imposed on Brady and the Patriots was too harsh, particularly compared to discipline that has been imposed on other players for other incidents, most notably, players accused of domestic violence.
A key role of a workplace investigator is to assist in the design and implementation of appropriate remedial measures if the investigation uncovers wrongful behavior.
Generally, the remedial or disciplinary measure taken should be commensurate to the wrongdoing and just harsh enough to discourage future inappropriate behavior. Additionally, employers should look to past practices and understand that the remedial measure implemented will likely create a precedent, perhaps serving as a benchmark against which subsequent disciplinary measures are judged.
Deflategate has generated interest among football fans and non-fans alike, primarily because it involves a high-profile athlete, playing the country’s most popular professional sport for a team that is both beloved and hated by many.
It has created heated debate in the public sphere, but for those of us who conduct workplace investigations, it also provides a fascinating glimpse into how and how not to conduct investigations.
Patti C. Perez is a shareholder in the San Diego office of Ogletree Deakins. Michael Clarkson is the office managing shareholder of the firm’s Boston office.
