Jay Sachetti joined Jeff O’Brien, partner at Husch Blackwell and Dyanne Ross-Hanson, president of Exit Planning Strategies talked about the market for mergers and acquisitions, exit planning opportunities for companies that don’t end up for sale and how companies can maximize their eventual sale price during an early October panel at the first Upsize on Tap event at Summit Brewing Co. in St. Paul.
When the state Legislature passed a law requiring employers to provide paid leave and safe time for employees, Justin Bieganek started hearing differing details from friends, colleagues and peers.
1, While an internal investigator may understand workplace policies, they may often lack sufficient training in collecting and evaluating information.
2, When there is risk of litigation, an investigation conducted by an outside investigator can better withstand potential scrutiny by a court.
3, Employers have a duty to investigate misconduct promptly and fairly. Launching an investigation of misconduct and developing a comprehensive investigation plan is important in satisfying an employer’s legal obligations.
4, Internally managed investigations can also create the perception of bias which may discourage candid participation from employees.
Workplace investigations are often the result of employee complaints. Though not all reported concerns lead to a formal investigation, employers have a duty to take appropriate action once they know or should have known about alleged misconduct. When initiating an investigation, employers should keep in mind that the investigative process may impact the organization’s reputation more than the alleged misconduct itself.
Allegations warranting investigation require a prompt and thorough process that ensures accuracy and objectivity. Developing a comprehensive investigation plan is essential to minimize the employer’s risk of liability, but one of the most critical decisions an employer must make when initiating an investigation is selecting the appropriate investigator.
Employers often rely on their human resources department to conduct internal investigations because HR is familiar with workplace policies, structures and practices. In leading an investigation, HR may be responsible for interviewing witnesses, developing and reporting findings and determining disciplinary action. In certain circumstances, an investigation conducted by HR (or any internal investigator) may be practical and cost-effective for the organization. However, other circumstances warrant the use of outside counsel to best protect the organization’s interests and minimize the risk of liability.
Here are five considerations to help determine when to hire an attorney to investigate:
In addition to understanding workplace policies or employment violations, an investigator is responsible for gathering and evaluating evidence. While an internal investigator may understand workplace policies, they often lack sufficient training in collecting and evaluating information. Beyond fundamental interviewing techniques, an investigator must be able to assess credibility when faced with contradictory or inconsistent facts.
An investigator should also understand how to manage an uncooperative witness and effectively obtain details while addressing any privacy concerns. In cases involving sexual harassment, it is important for an investigator to use trauma-informed interviewing techniques to ensure the witness does not experience further unnecessary distress and to avoid compromising the investigative process. The investigator’s reported findings should be properly supported by evidence and avoid reaching any legal conclusions.
Adequate training and overall expertise can also provide an investigator with more credibility and give greater weight to their findings. When there is risk of litigation, an investigation conducted by an outside investigator can better withstand potential scrutiny by a court.
Employers have a duty to investigate misconduct promptly and fairly. Launching an investigation once the misconduct is known (or should have been known) and developing a comprehensive investigation plan is an important part of satisfying an employer’s legal obligations. Delays and interruptions in the investigative process can lead to documents being improperly destroyed and witnesses becoming unavailable.
The process of understanding workplace policies, developing the scope of the investigation, gathering information, assessing evidence and reporting findings can be time consuming and often requires additional resources.
The time and thoroughness required to conduct an effective investigation can be difficult for an internal investigator with competing work responsibilities and a relative lack of resources. Failure to investigate promptly can negate a defense of due diligence, putting the employer at a higher risk of liability.
Employees commonly report workplace misconduct to HR. As the general liaison between employees and management, HR engages with employees at various stages in their employment. HR’s relationship with employees and familiarity with workplace policies often results in employers relying on HR to investigate.
Although it may seem practical for HR to conduct an investigation, employers should be cautious. Given the nature of HR’s role within an organization, it can be difficult to remain neutral throughout the investigative process. Prior interactions between HR, the accused party, complaining party and any witnesses can create bias and influence several aspects of the investigation. Internally managed investigations can also create the perception of bias which may discourage candid participation from employees.
Employers may attempt to address bias by developing robust investigation plans and implementing company policies that promote fairness. Nevertheless, an investigator’s fact-finding approach and final analysis remain at risk. A common pitfall of internally led investigations is “confirmation bias,” which is the tendency to search for, interpret or recall information in a way that confirms prior beliefs. However unintentional, an investigator’s bias can be detrimental to the investigative process.
A properly trained investigator with no previous knowledge of the incident or prior working relationship with the parties and witnesses can utilize fact-finding strategies that maintain a neutral investigation and allow for a fair assessment.
When confronted with an allegation of discrimination, harassment or retaliation involving an employee at a management level or higher, the organization’s reporting structure may impact an investigation conducted by an internal employee. Whether the employee is directly involved with the misconduct or is a witness to the misconduct, their position of power and influence makes it difficult for an internal investigator to ask effective questions without fear of reprisal.
Allegations against a high-level employee can lead to significant legal consequences. An outside investigator’s neutrality, resources and expertise enables them to elicit information and challenge inconsistencies without worrying about potential conflicts with the employees involved.
Multiple allegations against a single employee or numerous complaints relating to similar misconduct may indicate a broader issue within the organization. As a result, a more extensive investigation may be required to determine the systemic issues contributing to the ongoing misconduct in such cases.
An investigator that understands employment matters can also recommend policy and procedural changes to minimize future conduct violations.
Key takeaway: Always assess the risk of litigation
When workplace misconduct warrants an investigation, choosing the appropriate investigator is critical. Employers should evaluate internal resources to determine whether an internal investigator has the adequate training, sufficient capacity and ability to remain neutral throughout the investigative process.
Employers should also evaluate the scope of the investigation; the involvement of high-level employees, multiple parties or ongoing misconduct will likely require a more extensive investigation conducted by outside counsel.
Partnering with an attorney as your outside investigator allows employers to minimize the risk of liability when internal support is limited or the scope of the investigation is complex. More importantly, an attorney’s resources, neutrality and legal expertise can be leveraged to mitigate risk.
