While fact-finding investigations have long been a feature of good employer decision-making and dispute resolution, the importance of conducting and documenting prompt, thorough and objective investigations has increased over the past decade.
This change is due, in part, to two United States Supreme Court rulings in 1998 that held that employers can avoid liability for sexual harassment that does not involve an adverse employment action (e.g., termination or demotion) if the employer can demonstrate: (1) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of the employer’s preventive or corrective measures. This principle often is referred to as the “Faragher/Ellerth affirmative defense,” in reference to the two 1998 United States Supreme Court decisions in which the Court established the defense.
Courts have applied the Faragher/Ellerth affirmative defense to other types of harassment and discrimination cases. Accordingly, in many instances, an employer’s liability will turn on how it handles a complaint.
In addition to providing the basis for an affirmative defense to a potential claim of harassment or discrimination, having an internal investigation conducted by a professional workplace investigator who is also an attorney will give management the tools to understand what has taken place and to decide upon appropriate courses of action, such as whether to discipline those responsible, whether to waive or retain the attorney-client privilege with respect to the matters investigated, how to conduct interviews of management and employees as well as whom to interview, how to treat whistleblowers and cooperating witnesses, how to document the investigation, and how to implement measures to prevent recurrence.
It also seems that juries (and other regulatory officials) are beginning to expect higher quality investigations by employers. The larger the employer the greater the expectation seems to be. Click here to read about one jury’s expectations of an employer faced with a claim of sexual harassment. Attorneys who regularly represent employees report that one of the key factors they consider in deciding whether to take a case is the quality of the employer’s internal investigation into the underlying matter.
Traditionally, an employer’s regular counsel would often conduct these fact-finding workplace investigations when they could not be handled effectively in-house by human resources. Increasingly, employers and their regular counsel have modified this approach and are retaining neutral and independent workplace investigators. For a more detailed discussion about the risks and issues created when an employer uses its regular legal counsel to conduct a fact-finding investigation, click here.
Why Use Separate Counsel as a Professional Workplace Investigator vs. the Employer’s Regular Counsel?
Employers and their regular counsel who decide to retain a separate attorney to conduct a fact-finding workplace investigation get the benefit of having an attorney conduct the investigation but avoid potential problems such as:
- the employer’s regular attorney being deemed a witness;
- the conflicting roles of advocacy vs. impartiality;
- actual or perceived objectivity of the investigation due to pre-existing relationships between the employer and its regular counsel; and
- the risk of the attorney-client privilege being inadvertently waived by combining fact-finding and advisor roles.
Why Use a Professional Workplace Investigator Instead of Human Resources?
Even larger employers who have the benefit of having HR professionals in-house may sometimes decide to retain an external professional workplace investigator. For example, I’m sure in hindsight that Chrysler wishes it had retained an external professional workplace investigator to investigate allegations of anonymous workplace harassment. It didn’t and the result was a $3.5 million verdict that you can read about here.
Reasons employers and their counsel may decide to use an external professional workplace investigator even if they have in-house HR professionals for this include:
- HR’s workload may be such that the investigation cannot be a priority;
- HR may lack the subject matter expertise and experience to handle the issue;
- HR may have a real or perceived conflict of interest; and
- HR may not possess the requisite communication skills necessary should the dispute proceed to jury trial.
Will Your Investigation Withstand Scrutiny at Trial?
Should a workplace dispute proceed to trial, it is also becoming more common for plaintiffs’ attorneys and defense attorneys to present the testimony of management practices experts. Such testimony often focuses on the quality of the employer’s investigation of the plaintiff’s underlying complaint. Here is an example of this type of Expert Witness Report from a case pending in the United Stated District Court for the Northern District of Mississippi.
Employment counsel charged with defending the employment action being challenged will be best positioned to do so where they can call as a witness the professional and expert workplace investigator the employer used to conduct the investigation. Click here for tips on how to select an effective workplace investigator.
Recommendation for Employers
In light of these dynamic changes, employers are encouraged to work proactively with their regular employment counsel to review their approach to investigations. As a part of that review, I encourage employers to identify professional workplace investigators to use should the need arise. Having a fully vetted workplace investigator in your Rolodex is just good business sense in today’s environment. As one of my colleagues is fond of saying, “workplace Investigators are kind of like plumbers. You hope never to need one, but when you do, you need a good one and you need them fast.”
Workplace Investigations Group is headquartered in Atlanta, GA but has a national directory of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience. As such, wherever the workplace issue arises, corporate counsel and employers can easily identify an investigator who can respond to the regional need quickly, impartially and competently. For more information: www.Internal-Investigations.com