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Why Use a Third Party Workplace Complaint Investigator?

Complaints of workplace misconduct can occur at any time and in the #MeToo era, can occur frequently. Employers must be ready to conduct a prompt, impartial, and thorough investigation, while being mindful about protecting employees from being branded by a complaint as well as preserving any privilege with in-house or external counsel who is involved in the situation. There are at least three reasons why an organization should consider using an outside investigator:

Using an outside investigator indicates that you, the employer, take allegations of misconduct seriously, want to find out what really happened, and are willing to live with the consequences. An outside investigator is an independent fact-finder who plays no part in next steps - discipline or future opportunities - for investigation participants. The investigator has 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 parties or subject, the outside investigator is impartial. This independence provides witnesses with the comfort that they potentially would not have with an internal human resources manager - turned investigator who is privy to unrelated information, who might have input into performance reviews, and who they likely will run into at the water cooler.

An outside investigator wears only one hat – that of a fact-finder only. In-house counsel advocates for the company and, similar to an internal human resources investigator, will likely be viewed as less objective than an outside, neutral fact-finder. With an internal investigator, the investigation may never have the credibility and objectivity required to withstand later scrutiny should the matter reach litigation.

An employee who raises a complaint is often concerned that the company will retaliate against them. The truth is that most human resources managers and other management do not treat employees differently when concerns are aired about the company or individual managers. And yet, a complainant who has been overlooked for promotion or a jury considering disciplinary action that appears to come on the heels of a complaint, may see things very differently, even if the company action or inaction is completely unrelated to the complaint. Employees who participate in investigations often say that the internal investigator now knows too much and “sees me as a complainer.” This internal investigator will be aware of the perception of retaliation with each interaction with these participants and others who may hear about the complaint regardless of instructions to keep the matter confidential. Even if the internal investigator actually can separate out what was said in about the complaint, and operate objectively going forward, participants will likely never be convinced that the internal investigator can “unhear” what was heard during the investigation. Conversely, using an outside investigator allows the company to conduct a full investigation while the company and employees carry on without perceptions about the process weighing down the employee population.

Conducting a prompt, impartial and thorough investigation provides a solid affirmative defense to allegations of sexual harassment and other allegations of misconduct. When an investigation is performed by in-house or outside counsel, however, a conflict might arise should litigation ensue. If the organization wants to use that investigation to show it did the right thing, it may have to waive the attorney-client privilege with respect to strategic conversations related to the investigation. Using an outside investigator provides a bright line barrier separating those sensitive discussions from the investigative process, so the privilege can still be preserved.

When an investigation is offered as evidence that an employer responded appropriately to a complaint, the investigator might be called as a witness at trial. If that investigator is also counsel for the organization, representation on that matter will be problematic. Our experienced investigators are independent of the organization which means there are no conflicts in terms of representation. EPS investigators are also well prepared for the eventuality of deposition or trial testimony. And when the investigator is called, the employer will feel confident that they have conducted many similar investigations and have found in some instances that policy violations occurred and, in others, that violations of policy did not. An outside investigator does not represent the company and their statements will be limited to what they learned in the investigation and nothing else.

Organizations have often relied on in-house and outside counsel to handle these investigations, particularly when the accused is a high level employee or they do not have the internal resources available to conduct an impartial investigation. Many attorneys choose not to conduct employee relations investigations simply because the risk of becoming a fact witness at trial is high when the investigation is used as part of the defense.

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