A number of problems may be created by an improper investigation, including loss of employee morale, destruction of confidentiality and potential litigation involving the organization as well as the investigator. In addition to complaints of discrimination and harassment, public companies must follow certain protocol when dealing with ethical complaints after the passage of the Sarbanes-Oxley Act in 2003.
Investigations of employee complaints are complicated; however, if these investigations are handled properly, the process often avoids costly litigation and judgments and resolves institutional conflict. Choosing the appropriate investigator is paramount to avoiding costly mishandling of claims. An investigator must be well trained, impartial, thorough, and understand the importance of confidentiality, the investigative process, documentation and employee relations law.
In the past, organizations have often relied on their in-house and outside counsel to handle these investigations, particularly where the accused is a high level employee within the organization or the client does not have the internal resources available to conduct an impartial investigation. Utilizing counsel for an investigation, however, is not always advisable. Most attorneys now choose not to conduct employee relations investigations. The risk of becoming a fact witness at trial is high when the investigation is used as part of the defense. Harassment case law holds that attorney-investigators become fact witnesses if the investigation is used as a defense at trial, resulting in a waiver of privilege with respect to all communications and a possible conflict precluding the attorney's continued representation of the client at trial.
For many organizations, there is no choice: the employer has no appropriate internal resources to conduct an investigation. They are not trained to conduct investigations, simply do not have the manpower, or do not enjoy the possibility of becoming entwined in time consuming litigation as a fact witness. EPS offers an alternative to using counsel or internal resources: EPS’ employment attorney-consultants are well trained and experienced in a myriad of employment relations investigations including sex harassment, national origin, Equal Pay Act claims, discrimination and other forms of employee misconduct.
Partner with EPS to provide prompt, thorough and impartial investigations by contacting us at eps@EPSpros.com.