Employee misconduct in the workplace can have a toxic effect on morale and productivity, which often incentivizes employers to resolve the situation quickly. These days, there are clear benefits to getting out in front of any misconduct complaint as movements like #MeToo have employers scrambling to vet their workforce so they can identify predators before scandal or evidence of misconduct can become public. In a surveillance culture where both bad behavior and good behavior are fodder for a good viral news story, employers everywhere are starting to understand the value in properly handling a corporate crisis. But in their haste to resolve the situation, are employers handling internal investigations properly?
Regardless of the type of business and type of misconduct, (sexual harassment, drug-trafficking, theft, etc.) the first instinct where there is a whiff of employee misconduct is often to keep the information very close to executives. As with any investigation, the controlled release of information has an investigative advantage in identifying the true culprits of any misconduct. This is the beginning of employers remaining too close to the situation. It’s not unusual for a well-meaning employer to appoint themselves as the head of the investigation—but this presents a huge conflict of interest. As a person with a great deal to lose, the employer is, by their very nature, biased and an unbiased investigation is the foundation for anything built on an employee complaint. Without the use of an external investigator, the case loses integrity.
Hiring an external investigator, like a licensed private investigator, will bring a flattering layer of transparency to any workplace investigation. First and foremost, a private investigator is an independent third-party. Having no personal knowledge of the employees involved—and therefore having no preconceived notions about them—means they can truly approach the case from an indisputable place of objectivity. The employer’s personal knowledge of their employees disqualifies them from such objectivity. Whatever the misconduct du jour, they might never suspect their trusted personal assistant, their senior manager, or their business partner—all individuals with extensive access to company information and property. However, a private investigator will vet this list of possible suspects in search of the truth.
When an employer is unsure of how to proceed when investigating workplace misconduct, it seems like a no-nonsense solution to let the lawyers handle it. And it can often make sense, as they will be fielding any litigation that surfaces. In-house counsel might feel it’s under their purview for the same reasons, but this is very misguided. The lines of their capacities as both in-house counsel and investigator cross one another, thus creating another conflict of interest. While there are states like New York that allow attorneys to act as private investigators without a license to do so, this is still not recommended. Witnesses within the company will likely have anxiety about speaking to the company’s lawyer, and might not be as forthcoming with pertinent details. Leads suddenly begin pancaking into dead ends as nervous employees become less cooperative. Private investigators have the advantage in this situation, as they are not representatives of the individual’s employers in any capacity, and have no power to fire them. It’s the same advantage private investigators have over law enforcement because they have no powers of arrest.
The documentation provided by a private investigator is invaluable to workplace investigations. After all, many reports not handled to the satisfaction of the complainant often lead to legal action, the most common example being the more familiar story of sexual harassment in the workplace: An employee alleges sexual misconduct against another employee. Both parties are interviewed. The interviewer does not tape the interview nor take notes. After a shoddy investigation, the complainant decides to sue the company for negligence. Another common example is the case of an employee who is hastily terminated for FMLA abuse or malingering before the company conducts a thorough investigation.
Not only are paper and ink expensive, but filling out and preparing reports is time-consuming—time that would be better spent trying to improve your business. Private investigators keep meticulous records, just like law enforcement, of all witness statements, evidence, surveillance, and relevant information to the case. This will go a long way towards addressing the complaint after the PI has issued their solution. It’s a perfect package: The investigation is chronicled from beginning to end, all of the relevant information is accessible, and best of all, it was conducted, prepared, and presented by a completely objective, independent third-party. The same third-party can also offer testimony in any court case that might result from the investigation.
Whether you’re investigating sexual harassment allegations, drug-trafficking, theft, or any complaint of employee misconduct, make the proactive choice of hiring a private investigator. It’s the strongest first step you can take in any internal workplace investigation. From the beginning, the investigator will be an impartial, unbiased eye whose only loyalty is to the truth. This kind of due-diligence will go a long way towards demonstrating you, as an employer, have heard the complaint, taken it seriously, and are only interested in what actually occurred. The solution will not be based on pre-conceived notions of colleagues, or biased assumptions, but independent deduction and well-documented evidence. And even if the investigation comes to a less than amiable termination, the foundation laid by the private investigator will protect your business from litigation.
With sexual assault allegations dominating recent news cycles, Americans are further developing their figurative picture of what it’s like for a survivor of sexual assault to come forward with allegations against their abuser. When a survivor comes forward, they are subjected to scrutiny, libel/slander, and fierce criticism from private citizens like themselves about how they should have handled the situation. Knowing that, it’s not incomprehensible that rage continues to fester in the communities affected by the Larry Nassar investigation and the USA Olympic Gymnastics organization’s glacial response time to allegations against him.
Nassar is currently in federal prison serving a 60-year sentence for possession of child pornography, which is a blip compared to the sentences he received from the judges in Ingham and Eaton County, both ranging from 40 years to as long as 175 years. More than 330 women and girls have come forward claiming to be a survivor of Nassar’s abuse. His sentence came after Nassar pled guilty to possession of child pornography and sexual misconduct with the young gymnasts he treated at the famous Karolyi Ranch in Texas. Sarah Jantzi was Maggie Nichols’ coach at the time—Maggie’s allegations of abuse against Nassar are considered some of the first in the string of gymnasts who came forward after the Nassar investigations became public. Jantzi reported her concerns about Nassar to USAG after she overheard Maggie and another gymnast discussing whether Nassar’s practices were considered “normal.”
Nassar treated Maggie for a knee injury, during which he insisted on examining her groin area. He did not wear gloves, and took pains to close the door and the blinds before beginning the examination. Jantzi also contacted Maggie’s mother, Gina Nichols, who told IndyStar, “It was nothing you’d expect in a million years. I mean, I’m sending my minor daughter the last four years, one week a month, down to the Ranch to train. So proud. She’s on the USA team. Working so hard. Our family making all these sacrifices. It’s just—you wouldn’t even think this is something that would have ever happened.”
USA Gymnastics officials waited a jaw-dropping 41 days to report Nassar to police after the first hearing regarding Jantzis concerns. It’s a bad look, and to make matters worse, the organization did not inform Michigan State, where Nassar also worked with young athletes until late summer in 2016. The notoriety of some of the survivors drew a great deal of media attention when the investigation became public, and while much of the country currently associates mention of the USAG with sexual abuse allegations, the reality is this culture of silence and abuse is not unique to the USA gymnastics team. Katherine Starr, a former Olympic swimmer and abuse victim who founded Safe4Athletes, a nonprofit organization working to address and prevent abuse told the Chicago Tribune, “We’re hearing all about gymnastics, but the problems in gymnastics are equally as prevalent in every other sport…I think people are starting to understand the complexity of this, and how this stays in the system…It stays in the system because of governance, because of the people in charge.”
Just this week, two divers for the USA Diving team have filed lawsuits against their former coach, John Wingfield, claiming his academy ignored complaints against a coach under his supervision, Johel Ramirez Suarez. The divers claim the organization had knowledge of Suarez’s alleged predation prior to Suarez sexually assaulting them both. Suarez was eventually arrested in Hamilton County, Indiana in November of 2017 and was subsequently charged with 32 felony counts of child sexual abuse, earning him a spot on the USA Diving teams banned list. Even after USAG had reported Larry Nassar to the FBI (13 months after the initial hearing), they still did add his name to that list.
In a review of documents and data pertaining to the organizations governing the sports, the Washington Post revealed since 1982, there have been over 290 coaches and officials affiliated with American Olympic sports who have been accused of sexual misconduct. That number covers 15 different Olympic sports, and includes both individuals who have been convicted of their crimes and individuals who have never had to answer for the allegations made against them. The figure averages out to one official being accused of sexual misconduct every six weeks for over 35 years. If the Nassar case tells us anything about how Olympic organizations might have typically responded to abuse allegations, it’s not a mystery how a culture of abuse and silence was cultivated as many attempts to investigate the abuse were swept under the proverbial AstroTurf.
Survivors like Aly Raisman have called out USA Gymnastics, claiming that they were more concerned about guaranteeing gold medals that protecting their young athletes. “I don’t think that they cared at all. I think at first it was to ‘get him away,’ Nassar away from the Olympians, but when it was about a 10-year-old, or a 15-year-old, or a 20-year-old in Michigan they didn’t care,” Raisman told the Indy Star. That much is apparent from emails between Nassar’s legal counsel and USAG officials, in which the Olympic organization clearly took part in the effort to conceal the Nassar investigation from athletes and from the public. Aly Raisman also told IndyStar that she received a text message from the former USA Gymnastics President, Steve Penny in July of 2017, advising her that the first priority was keeping the investigation “quiet and confidential.” It would have saved many survivors like Kaylee Lorincz a great deal of pain if the organization had made allegations against Nassar public. While under investigation, Nassar treated Lorincz twice after Sarah Jantzi notified USAG about her concerns. Lorincz says that she was abused both times by the sports medicine “celebrity,” and lamented, “It could have saved many more if they could have just stopped him in 2015. It makes me angry and upset because it could have prevented so much.”
At this time, it’s difficult to determine the motives of the USOC and how they reacted to allegations against Nassar and other officials who have been accused of sexual misconduct with athletes. Did they do so out of ignorance or apathy? Or was this a focused effort to erode investigations into these allegations all together? A recent Washington Post article called for law enforcement and state attorneys to open investigations into other USA Olympic teams and organizations. John Manly, an attorney who represents many survivors of Nassar’s abuse told the publication:
“The most amazing thing about this evolution is that no one has executed a search warrant on USA Gymnastics and no one has executed one on the USOC…If anyone deserves a search warrant given the evidence to date, it’s them. If you believe these Olympic gold medalists, then [USA Gymnastics] violated the reporting laws in Indiana. I mean, why haven’t you done something?”