By: David Vogel
As legal advisors for the organizations they serve, in-house attorneys frequently become involved in handling employee complaints arising from a variety of legal issues, most commonly discrimination and harassment. A robust series of court cases stretching back to two pivotal decisions by the U.S. Supreme Court in 1998 has established an affirmative duty on employers to conduct prompt, impartial and thorough investigations of such complaints and to take prompt remedial action to put an end to any inappropriate conduct identified during the investigation.
Failing to conduct an investigation or conducting an inadequate investigation precludes the employer from using an investigation as an affirmative defense during litigation and introduces the risk of the court allowing punitive damages. In-house counsel’s understanding of and adherence to the principles of a sound workplace investigation are therefore vital to managing the organization’s exposure to liability.
One of the most crucial steps in planning any workplace investigation is to choose an investigator. Qualification factors include: knowledge of the applicable legal issues; an ability to conduct interviews and assess credibility; an ability to develop rapport during interviews; objectivity and professional credibility; a commitment to confidentiality; sufficient time to devote to the investigation; and experience and effectiveness as a potential witness in any ensuing litigation.
In-house attorneys who become aware of employee complaints that warrant an investigation can choose one of three roles in the ensuing investigation. First, they can serve in the traditional role as legal advisor to the organization by letting someone else, typically in human resources, oversee the investigation intended to inform the attorney’s provision of legal counsel. That is the most hands-off approach, and the one that lays the strongest foundation for the assertion of a privilege for the attorney’s work. Second, they can oversee the investigation, which often includes selecting the investigator. This option provides the attorney with more control over the process while still maintaining a clear distinction between the roles of attorney and investigator, but only if the investigator is allowed to operate with reasonable autonomy. Third, they can conduct the investigation themselves. This option provides an in-house attorney with the greatest control over the investigation, but is dependent on the ability of the attorney to effectively and competently conduct workplace investigations. It also obscures the line between the attorney’s roles as legal advisor and fact-finder, which can have significant implications later if the employer asserts a privilege.