Seven Tips for Selecting an Investigator to Conduct A Fair, Unbiased and Professional Workplace Investigation

  From WinWinHR.com (October 13, 2012).

I spoke this week at the HR Star Conference here in Atlanta and at the conference had a great discussion   with some HR professionals on the importance of conducting fair, unbiased and professional workplace investigations.  One of the HR managers mentioned that her company recently received a complaint from a current employee complaining that he was being subjected to a racially hostile work environment.  As I regularly conduct third party, neutral investigations into allegations of workplace misconduct and serve as an expert witness on workplace issues, our conversation turned to the benefits of using an independent investigator as compared to conducting the investigation internally by HR or by the employer’s regular legal counsel.

We all agreed that promptly investigating allegations of workplace misconduct, like discrimination, harassment, retaliation, and hostile work environment, is not only a good business practice but is also important legally.  An employer demonstrates (to its employees and enforcement agencies) good faith and adherence to anti-discrimination and fair treatment policies and laws by promptly investigating issues.  However, unless the investigator is independent and, perhaps more importantly, perceived as independent every conclusion drawn by the investigator is going to be questioned by employees and potentially by enforcement agencies and perhaps plaintiff’s counsel.

A recent  jury award of $313,206 to an employee who sued alleging retaliation demonstrates the importance of the perception of a fair and impartial investigation.  In discussing the jury’s award after the case several jurors said that they considered the plaintiff to have been the victim of an unfair and biased investigation process.  Here is an excerpt from a newspaper article discussing the case:

“A grievance is supposed to be investigated fairly, without any bias,” said juror Debi Mitchell. “This was not a fair and impartial investigation … I’m glad we got to show that their behavior was wrong. I hope they can change the way they treat employees and create a better work environment.”

It is also important for employers to recognize that if they choose to use their regular legal counsel (either in-house or outside counsel) to conduct a workplace investigation that their regular legal counsel could become a fact witness in any future litigation.  If the investigating attorney becomes a fact witness, any applicable attorney-client privilege would likely be waived.  Moreover, the attorney and his or her law firm would be conflicted out from the ability to represent the employer in the litigation.

Recognizing the importance that an investigation be impartial and objective and anticipating that the complaint has the potential to end up in litigation, the person selected to conduct the investigation should:

  1. be someone the parties view as impartial;
  2. be familiar with applicable employment laws and the employer policies;
  3. have the time available to devote to conducting a prompt and thorough investigation;
  4. have investigation experience and good interviewing skills;
  5. be someone with good communication skills who will be an effective and credible witness should the complaint result in litigation;
  6. recognize the importance of confidentiality and be able to maintain confidentiality; and
  7. be able to deliver a complete and accurate report.

Lorene Schaefer is an experienced litigator, former general counsel, and highly sought after workplace investigator.  Contact Lorene directly at lorene@onemediation.com .

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