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When Workplace Investigations Involve Law Enforcement

Workplace investigations have become widespread in response to employee complaints and a continued increase is predicted for 2022.[1] In most instances, an internal investigation will not uncover illegal activity, but rather potential policy violations. On occasion, an internal investigation will reveal potential criminal activity. If criminal activity is discovered during an investigation, the organization should contact local law enforcement. For example, if an investigation uncovers conduct that could constitute embezzlement, theft, sexual assault, robbery, arson, drug possession or another criminal offense, the organization will typically need to notify the local police. Whether or not to report a criminal offense directed at an individual victim is up to the victim. If the crime was committed against the organization, leadership will need to decide whether to involve law enforcement. Management should refer to any policies that direct the action that is required under specific circumstances. Many policies require notification to law enforcement upon discovery of potential criminal activity. Alternatively, an organization can sometimes offer to refrain from reporting conduct to law enforcement as leverage in a dispute with an employee. For example, in an employee embezzlement investigation, an organization can offer not to press charges against an employee who has stolen from the organization in exchange for full restitution. However, criminal charges should not be filed for the sole purpose of gaining an advantage in civil litigation. Prosecutors often dismiss cases if they are filed for this reason.

Why Involve Law Enforcement

Often criminal charges are pursued to prevent an employee from potentially committing similar acts at a future workplace or to ensure that future employers are aware of the conduct, particularly in instances of dishonesty. For example, an organization may want to pursue criminal charges so that an employee who has embezzled from the organization has a criminal record and is not put in another position where he or she has access to funds. Without a criminal record, future employers who perform criminal background checks may have no knowledge of a previous incident and may entrust this individual with financial or personal information. Additionally, leadership and human resources professionals often feel the need to involve the criminal justice system to either punish or rehabilitate an offender.  All are appropriate reasons to involve law enforcement.     

Even if a case is reported to the police, law enforcement will determine whether there is sufficient evidence to file charges with the district attorney’s office. Ultimately, if an individual or an organization decides to pursue criminal charges and the police file a case, the prosecutor will make the decision as to whether there is sufficient evidence to take a case to the grand jury. A grand jury is a group of citizens who help determine whether a charge should be brought against a suspect. If the grand jury believes there is sufficient evidence to support a charge, the case is indicted, it is then assigned to a prosecutor who will handle the resolution of the case, which could include plea negotiations or a trial. The terms of a plea bargain might include a probationary period, jail time, a fine, community service or restitution. The prosecutor will involve the organization’s representatives in the negotiation process; however, the organization does not direct the course of a criminal case as a plaintiff would in a civil lawsuit. That role is within the purview of the prosecutor. Complaining witnesses, the organization in this case, can give input into the resolution of a criminal matter, but the prosecutor and the complaining witness do not always have the same perspective or objective. Prosecutors must consider the best use of resources amongst many cases while each complainant understandably prioritizes his or her own case.  Additionally, complainants often feel strongly about taking a case to a jury when the prosecutor may see more benefits to a plea bargain with a definite outcome. Organizations must be aware of the important distinction between their role as a complainant in a criminal offense and as a plaintiff in a civil lawsuit.                 

The Internal Investigation File and Law Enforcement

Law enforcement may request copies of the internal investigation file as part of a criminal investigation. For this reason, the language used in any internal documentation will be important. For example, investigators should be careful with the terminology used to describe conduct that could be considered criminal, such as “theft” or “embezzlement” as these terms have specific legal definitions. Instead, the language used should focus on policy violations and describe any possible illegal conduct as “alleged” behavior. The improper use of legal terms such as “theft” in investigative documents could expose the organization to a defamation claim or other litigation. 

It is also crucial to keep detailed notes and documentation of all actions taken internally. Additionally, it will be essential to preserve all relevant emails, surveillance videos, and phone logs to turn over to the police. One person should be designated as the custodian of all documents, spreadsheets, or contracts that could be considered evidence. This person should maintain custody of the information in a secure location so that there is no question as to whether the documents have been modified in any way. All steps taken in an internal investigation that an organization intends to turn over to law enforcement should be thoroughly documented in a manner that is clear to those utilizing the report outside of the organization.   

Separating the Investigations – Internal and Law Enforcement

If a criminal investigation does ensue, it is advised to keep the internal workplace investigation separate from the police investigation for several reasons. First, the law enforcement process may not move as swiftly as organization policy and employment laws require. A prompt investigation is crucial to defending a civil lawsuit involving a workplace complaint of harassment or discrimination. On the other hand, the criminal justice system moves slowly and follows specific procedural steps. In fact, the organization may be ready to act based on the internal investigation findings well before there is a resolution of any criminal case that follows. Further, the burden of proof required to indict and prosecute a criminal offense is much higher than what would be required to establish a policy violation and a potential basis for a termination or other adverse employment action. For this reason, the investigations may take different paths and follow different timelines.  If the police investigate a workplace matter it may take a significant amount of time due to the availability of law enforcement resources and any report backlog. Additionally, after the police have investigated a case, the case must work its way through the criminal justice system. This process includes presentation to the grand jury, evaluation by a prosecutor, and disposition by either a plea bargain or a contested trial or hearing. Depending on how a criminal defendant chooses to handle his or her case, the criminal court process can take years. It is not necessary, nor advised, for an organization to wait for the conclusion of a criminal case before acting within the workplace.


There are many considerations in deciding whether to involve law enforcement in a workplace matter. Organizations should always refer first to policy for direction, and then evaluate their goals and potential remedies. If internal policies or even civil remedies seem insufficient to address the conduct, it may be beneficial to partner with law enforcement.