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Workplace Investigation? You Might Want to Take it Outside

Complaints of workplace misconduct can occur at any time. Are you ready to conduct a prompt, impartial and thorough investigation? Can you ensure employees will not be forever branded by this complaint? And are you confident you will not waive any privilege with in-house counsel if they conduct the investigation? Here are three reasons why human resources professionals should consider using an outside investigator:There is a growing trend in employment litigation to use an employment practices expert to provide an opinion on whether the employer's actions in a particular situation were appropriate. Increasingly, parties in litigation recognize the utility of a practitioner who can navigate a jury through a maze of facts and speak to how a work-related situation was handled. Courts continue to recognize the validity and admissibility of testimony on employment practices. In Maharaj v. California Bank & Trust, the Court reviewed numerous decisions permitting testimony by human resources experts and found that expert testimony on whether the employer acted consistently with the standard of care may assist the jury in deciding the employer's liability for discrimination.1

Provide Credibility: Using an outside investigator says that you, as a company, take concerns of misconduct seriously, want to find out what happened and are willing to live with the consequences.1 An outside investigator is an independent fact finder who plays no role in next steps - discipline or future opportunities - for investigation participants. The investigator arrives at the workplace with a well-defined role; to collect facts about a specific complaint and potentially any related complaints that might surface. The investigator reports all findings back to the company and then exits. With no preconceived impression of the complainant, subject or department as a whole, the outside investigator can be impartial. The outside investigator does not report to the board of directors and will likely never interact with the company’s upper management or owners. This fact alone provides witnesses with a sense of comfort that they potentially would not have with a human resources manager - turned investigator who knows about their performance, who they will see at the water cooler and who might have input at their next performance review.

Likewise, an outside investigator wears only one hat – that of a fact finder. The role of in-house counsel is not so clear. In-house counsel is an advocate for the company and will likely be viewed as less objective than an independent fact finder. Moreover, if in-house counsel advocates that the company did not engage in a certain behavior toward any employees and consequently learns from witnesses that the company did engage in that behavior, can counsel continue to advocate effectively? Perhaps, but the investigation will never have the credibility it needs to withstand later scrutiny should the matter reach litigation.

Prevent Retaliation or the Perception of Retaliation: An employee who raises a concern is already disgruntled and often is poised to feel that the company will retaliate against the complainant for airing the department’s dirty laundry.  The truth is a human resources manager will not likely treat employees differently should they criticize the company or even individual managers. Tell that to the complainant who has been overlooked for their next promotion or to the jury when the subject was disciplined for an unrelated performance issue only weeks after the investigation concluded. Employees who participate in investigations often say that the human resources manager - turned investigator now knows too much and “sees me as a complainer.” This internal investigator will carry the weight of retaliation into each interaction with these participants. Even if the internal investigator can separate out what was said in the investigation, participants will likely never be convinced that the internal investigator can “unhear” what they have heard. Conversely, using an outside investigator allows the company to conduct a full investigation while allowing the company and employees to carry on with their business without the weight of the claim affecting the perceptions of the employee population. 

Protect that Privilege: Conducting a prompt, impartial and thorough investigation provides a solid affirmative defense to allegations of sexual harassment, as well as other allegations of misconduct.2 When an investigation is performed by in-house counsel, however, an employer may waive the attorney-client privilege. Not a problem until that privilege extends to more sensitive and related discussions – like discipline or changes in company policy.3 Using an outside investigator provides a barrier to mixing those discussions thereby avoiding any concerns that the employer may have waived the attorney-client privilege to other discussions that the employer does not want to waive. 

An outside investigator might very well be called as a witness at trial and experienced investigators are well prepared for this eventuality. And when the investigator is called, the employer will feel confident that they have conducted dozens of similar investigations and have found in some instances that policy violations occurred and in others that violations of policy did not. The investigator will refrain from using words like “us” and “we” and will explain that they have never been to the employer’s country club or holiday party. An outside investigator does not represent the company and their statements will be limited to what they learned in the investigation and nothing else.

So Take It Outside
When a complaint of workplace misconduct lands on your desk, consider using an experienced outside investigator. The investigator will conduct a prompt, impartial and thorough investigation. The investigator will assure participants that what happens in the investigation stays with the investigation, and that any privilege the employer has with in-house counsel will be protected and waived only to the extent that an investigation was conducted by someone else who was fair and impartial.


1 Employers rely on their investigation as an affirmative defense to avoid liability in a hostile workplace claim to show they exercised reasonable care to prevent and promptly correct sexually harassing behavior. Faragher v. Boca Raton, 524 U.S. 775 (1998), andBurlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). 

2 Federal law requires employers who knew or should have known of possible harassment, discrimination or retaliation to investigate. Bator v. State of Hawaii (9th Cir. 1994) 39 F. 3d 1021; Nichols v. Azteca Restaurant Enterprises, Inc. (9th Cir. 2001) 256 F. 3d 864; Fuller v. City of Oakland (9th Cir. 1995) 47 F. 3d 1522.

3 In Koss v. Palmer Walter Department, 0213 WL 5564474 (October, 2013), the court order all of the documents related to the investigation, even those presumed to be confidential, were discoverable when the employer’s lawyer  was intimately involved in the investigation of the claim of harassment. Read more: http://newenglandinhouse.com/2014/01/07/attorney-client-privilege-and-workplace-investigations/#ixzz36iOzfGbv. Likewise in EEOC v. Spitzer, the case ended in a mistrial and the employer was sanctioned over $300,000 for failing to produce its attorney’s handwritten notes which said, “Bad for us” with respect to some witness statements. EEOC v. Spitzer Management, Inc., 866 F.Supp.2d 851 (2012).