Hide and Go Seek: Finding a Competent Workplace Investigator

Where on earth can you find someone to do a proper workplace investigation when the anonymous, confidential, overly detailed, woefully under-detailed or other internal complaint arises that alleges misconduct such as harassment or discrimination?

1.   Look at your internal options.

Often employers will assign an investigation or “follow-up” on an employee complaint to a current employee.  Sometimes, this arrangement is just fine.   In other instances, it is fraught with problems straightaway.  Some red flags include:

  • The employee is investigating allegations involving an individual on a higher rung of the corporate ladder.
  • The employee has personal relationship(s) with the witnesses, etc. that may affect the apparent objectivity of the review.
  • The employee has never investigated misconduct allegations and does not have the requisite skills to do so.
  • The employee has other job duties that need to be done at the same time the investigation is to be performed.
Where these red flags are waving, it is time to explore other options for addressing the complaint (and getting to a resolution).

2.   Call your attorney.

Complaints about workplace misconduct often implicate state or federal laws.  By contacting your attorney, an employer not only is tapping an expert in the field’s knowledge, but can speak confidentially and strategically with legal counsel about the liability exposure and how to limit it before a lawsuit emerges.

Your attorney also is likely able to recommend a handful of qualified investigators who can assist you at a rate that is less than your attorney’s hourly fee.  Often, lawyers who are sole practitioners are called upon to conduct these investigations (though consult your state’s laws about the need of an investigator to hold a private investigator’s license).

Why would an attorney refer the investigation to another attorney?  Sounds counter-intuitive to the business interest, right?  In actuality, it may not be.  Investigators may be “witnesses” in litigation that arises out of the complaint.  For attorneys, most ethical rules prohibited attorneys from serving as legal counsel and a witness in the same matter.  Thus, the referral may be an effort to preserve the ability to represent the employer in later litigation (where the fees will almost always be more lucrative than in doing the investigation).

3.   Contact Human Resources consultants.

Many Human Resources consulting firms have investigation services.  Many times, these consultants are not attorneys.  Lack of a J.D. degree, however, does not mean that an experienced consultant is unaware of the applicable laws.  However, when the investigator is called to testify at trial, a jury may find it “of interest” that the investigator did not have that particular credential.

4.   Contact security and neutral services firms, such as One Mediation.

Other resources where a workplace investigator may be found include security businesses and neutral services firms.   “Security” business include those businesses that provide risk management and loss prevention services.  Often, these firms not only provide security services, but also have a bank of private investigators and even polygraphers that are well versed to review a misconduct complaint.  These firms often are more geared toward theft and embezzlement, but several do have experience with discrimination and harassment issues.

Neutral services firms typically have a bank of individuals who serve as mediators, arbitrators, and hearing (grievance) officers.  Often these individuals have significant knowledge of employment laws and also are lawyers.  Because they are contracted for a project – the investigation – their impartiality is bolstered by the lack of an ongoing relationship with the company.  In Atlanta, Georgia, for example, One Mediation is such a firm that has four attorneys who serve specifically as workplace investigators.  In this respect, employers easily can find and retain a workplace investigator when the need arises who can respond quickly.

 

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