The Importance of Conducting Quality Workplace Investigations

A well-run workplace investigation can facilitate in-house resolution and remove the risk of litigation. For example, under the Faragher-Ellerth defense, an employer may remove or limit the risk of liability for claims of unlawful workplace harassment by showing it exercised “reasonable care” to prevent and promptly correct the alleged misconduct through: (1) adopting and training employees on the company’s policy against discrimination and harassment; (2) conducting a swift investigation upon learning of claims of harassment; and (3) taking steps reasonably calculated to prevent the alleged harassment from reoccurring. See Faragher v. Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

An impartial and well-run workplace investigation can save money overall by shutting down legal disputes early on, simplifying any subsequent litigation, and avoiding full blown litigation. A bad workplace investigation, or none at all, can significantly raise the risk of litigation and liability.

Workplace investigations are appropriately undertaken in response to complaints of discrimination, harassment, retaliation, workplace violence, threats, fraud, theft, embezzlement, substance abuse, off-duty illegal conduct, and other unlawful conduct related to work or violation of the employer’s policies. Most workplace issues are minor and can be resolved informally by human resources or management through discussions with the employees involved. This is the most practical and efficient option. More complicated matters might require guidance from outside counsel. Reliance on legal guidance helps ensure that the investigation is well-documented and responsive to the underlying complaint.  

For serious matters with potential legal liability, hiring an experienced legal investigator can be one of the best investments an employer makes. Serious matters include discrimination and wage investigations initiated by federal, state and local agencies; allegations made by a complainant who has  hired a lawyer; claims made against a manager or corporate officer; and instances where the potential consequences are significant and may require legal representation to take corrective actions and avoid immediate damage to the employer’s reputation, license, or ability to continue operations and avoid incurrence of significant later damages, penalties or other financial consequences. In these cases, the perceived and actual impartiality of the investigator is essential. Using an outside legal investigator rather than an internal investigator demonstrates the employer takes such claims seriously and signals the impartial nature of the investigation. And lawyers are uniquely equipped and adept at gathering facts (interviewing a witness from all angles), assessing credibility, writing a comprehensive and organized report, analyzing facts, and advising whether, given the facts collected, a violation of law might exist. Also, use of an outside attorney can help protect the attorney-client privilege between the employer and its litigation counsel.  

It is important to be mindful of the quality of workplace investigations. Employers should consider the foregoing factors to determine whether a workplace investigation should be conducted by internal personnel, with or without legal assistance, or by an outside attorney investigator.