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Why Use a Third Party Workplace Complaint Investigator?

Complaints of workplace misconduct can occur at any time. Employers must be ready to conduct a prompt, impartial, and thorough investigation, while being mindful about protecting employees from being forever branded by a complaint as well as confidently 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, as a company, take concerns 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 arrives at the workplace with a well-defined and articulated 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 able to be impartial. This independence provides witnesses with a sense of 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, and who they likely will run into at the water cooler.

An outside investigator wears only one hat – that of a fact-finder -while 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. The investigation may never have the credibility and objectivity required to withstand later scrutiny should the matter reach litigation.

An employee who raises a concern is often poised to feel that the company will retaliate against them for airing dirty laundry. The truth is that most human resources managers and other figures of authority do not treat employees differently when concerns are aired about the company or even 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 suggestions or even 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. Conversely, using an outside investigator allows the company to conduct a full investigation while the company and employees carry on the business 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, as well as 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, a legitimate endeavor, the attorney client privilege may have to waive the attorney-client privilege with respect to strategic conversations. 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 well be called as a witness at trial. If that investigator is also counsel for the organization, representation on that matter will be problematic. EPS's 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 dozens of similar investigations and have found in some instances that policy violations occurred and, in others, that violations of policy did not. Our investigators 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.

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.