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Hiring an Outside Investigator – 5 Ways to Ensure a Solid Outcome

It’s 6:30 pm on Friday. As you walk to your car, your phone pings with an incoming email from an employee. You quickly scan the email and its ten page attachment and learn that the employee is alleging a yearslong pattern of sexual harassment by an officer of the company.

You quickly think through the situation. There is no way you or your staff can add this time-sensitive assignment to an already overflowing amount of work. Moreover, the high profile of the alleged wrongdoer is an additional complication as public or shareholder interest could be high. Complaints have always been addressed and resolved internally, sometimes with guidance from the organization’s outside employment counsel. You’ve never hired an outside investigator before, but the time has come. How do you confidently hire one and what can you do to ensure a solid outcome?

  1. Don’t Wait
  2. Choose Carefully
  3. Determine Legal Involvement
  4. Define Investigation Scope
  5. Choose Report Option

Don’t Wait

While you’ve made the decision to hire an outside investigator, the response to the complainant must be still prompt, and under some state laws, “immediate.”[1]

Even though you plan to outsource the investigation, respond immediately to the complaining employee to acknowledge receipt of the complaint and that you are reviewing it to determine next steps. Next, inform your outside employment counsel about the complaint and ask for guidance. These two emails should be sent immediately upon receipt of the complaint or as soon as practical. Yes, it is Friday and you may not be able to take any further action until Monday. The promptness of these actions, however, will buy you some time as you locate the appropriate investigator for the situation.

Choose Carefully

It is critical to retain an experienced third party investigator. Ask for referrals from your outside employment counsel and your network of human resources professionals.

When talking to potential investigators, ask questions about their availability, their process, and any experience with sexual harassment claims and previous experience working within your industry if that is relevant. Inquire about fee structure and if a cost estimate can be provided. A practiced investigator should be able to promptly answer these questions.

If possible, meet in person or via video-conference call so you can evaluate the investigator’s demeanor and style. You want to retain someone who will interact with your employees (and you!) in a calm, efficient and professional manner. Ask the investigator for their insight on virtual versus in-person interviews, and if they are experienced with both methods. Depending on the location of witnesses, virtual interviews may be a significant cost-saving, but only if the investigator has experience doing so.

Be very clear with your expectations regarding the start date of the investigation and how quickly it can progress.

Determine Legal Involvement

Talk with your in-house or outside counsel about what level of their involvement they think advisable during the investigation. A prompt complaint investigation is most likely required by your organization’s policy and is a critical element of a defense to a sexual harassment claim. If litigation ensues, the investigator will be an important witness and the investigation file will be evidence of their work. As a result, your attorney may want to be involved in some of the initial conversations.

In some situations, your attorney may decide to have greater involvement and deem the investigation privileged under the attorney work product and attorney-client communications privileges. Such an action may allow the company to maintain the confidentiality of the investigation even if litigation ensues. There are pros and cons to this approach and both should be explored with your attorney.

With or without the involvement of counsel, all communications regarding the investigation should be labeled and treated as confidential.

Define Investigation Scope

It is critical that you and the investigator agree on the scope of the investigation. In a ten page complaint, there may be multiple factual allegations underlying the purported harassment and there may also be allegations of wrong-doing unrelated to the harassment.

Once you have selected your investigator, review the complaint together and discuss which allegations need to be explored. This will minimize the chance of the investigator spending unnecessary time (and money) looking into allegations outside the scope.

Provide all company policies that relate to the complaint and an organizational chart that reflects the positions of involved employees. This will allow the investigator to make informed decisions about witness selection. Ask for a written investigation plan that confirms the scope and questions to be answered, and outlines a tentative list of witnesses with issues to be explored with each.  

During course of the investigation, the complainant or a witness may raise additional allegations not included in the underlying complaint. With a clearly defined scope, the investigator will know to obtain limited information and to later discuss with you whether to include these new allegations in the existing investigation or if they should be handled separately. 

Choose Report Options

Once the investigator has concluded interviews, ask for a verbal debrief of the findings. Consider including important stakeholders in this conversation, specifically your employment counsel and the decisionmaker for any necessary remedial action.

After the verbal debrief, discuss whether a written report is necessary and, if so, what format it should take. There are many format options, such as a brief executive summary or more detailed report with information regarding each witness statement. While the investigator should not make conclusions regarding violations of law, you may want them to determine whether company policy has been violated. On the other hand, a policy violation assessment may be more appropriately decided by you or others in human resources who are familiar with how similarly situated cases have been handled.  

When you receive the final report from the investigator, maintain it in a confidential file with other investigation documents.

Complaint investigations, when handled properly and promptly, minimize risk and help to avoid costly litigation and judgments. A well-trained, impartial, and thorough investigator who understands the importance of confidentiality, the investigative process, documentation, and employment law is critical. The selection of an appropriate outside investigator can ensure a solid outcome.


[1] Texas Labor Code Section 21.42 amended effective September 21, 2021.