You are in-house counsel for a technology company. You have just learned that one of your company’s Account Executives complained that the Vice President of Sales groped her at a sales team retreat a week ago. The Account Executive also claimed that the Vice President of Sales gives the best sales accounts to the men on his team, leaving the less lucrative pickings for the women. What to do?! The answer: promptly retain an external attorney investigator. Why, you ask?
- Both federal and California law require that an employer take immediate and appropriate corrective action in response to complaints of harassment or discrimination.
The law requires an employer to promptly investigate if it knows or should have known of harassing or discriminatory conduct in the workplace in order to prevent and correct such behavior. In fact, even where a complainant does not specifically mention harassment or discrimination, an investigation is advisable if: 1) key facts are in conflict, 2) the harm from the conduct at issue may extend to a number of employees, 3) the complainant is in a protected category, 4) the complaint involves workplace safety or violence issues, or 5) the conduct at issue violates the employer’s rules, policies or practices. The employer’s first step in response to these types of complaints is retaining the right investigator.
- An in-house investigator is not always the best person to conduct an impartial investigation.
Many larger companies employ human resources professionals to perform an internal investigation; this is often a viable choice. However, the employer should carefully consider a number of questions before deciding to conduct an internal investigation. Such questions include:
- Does the in-house investigator have sufficient training and experience to conduct a thorough and effective investigation?
- Does the in-house investigator have a sophisticated understanding of the laws applicable to the particular investigation?
- Does the in-house investigator have a personal relationship with anyone involved in the investigation?
- Is anyone involved in the investigation in a position to threaten the investigator’s job?
- Does the investigator have sufficient status and credibility within the company to reach unpopular conclusions without fear of reprisal?
The decision to use an untrained or inexperienced investigator, or one who could be susceptible to accusations of bias, will undermine the integrity of the employer’s “fair and thorough” investigation, which could have harmful repercussions if the complainant later brings a lawsuit against the company.
- An attorney workplace investigator with employment law knowledge and experience understands the legal landscape.
Workplace investigators must stay on top of constantly evolving legal issues and employment laws to ensure the procedural integrity of their investigation and to determine what substantive information is relevant to the investigation.
Procedural considerations may include: legal limitations on the investigator’s ability to guarantee confidentiality to witnesses or the complainant during and after an investigation, handling difficult or uncooperative witnesses, appropriate handling of client’s requests to “preview” an investigation report that may subsequently be produced in litigation, and an assortment of other thorny issues. A comprehensive understanding of the law is crucial in ensuring that the workplace investigator handles these issues appropriately and without jeopardizing the integrity of the investigation.
Staying abreast of substantive employment law developments is equally important in tailoring the fact-gathering process, focusing factual findings and enabling the investigator to control the scope of an investigation. “Scope creep,” which results in an ever-expanding investigation (significantly increasing costs), can be more effectively kept in check if the investigator has a sophisticated understanding of the current employment laws and cases that are relevant to the investigation.
The Bottom Line
When faced with an employee complaint of unlawful conduct or a serious policy violation, an employer’s prompt retention of an experienced employment attorney to conduct an impartial workplace investigation may be the best insurance it can obtain to protect against future litigation.
