EMPLOYMENT LAW INVESTIGATIONS
Employers often ask why they should spend resources to hire an outside fact-finder to conduct an investigation instead of having their Human Resources department handle it.
Independent and neutral
An independent fact-finder brings no prior bias to the individuals to be interviewed- including the complainant and alleged wrongdoer. The independent nature of the fact-finder lends credibility to the process an often provides a degree of assurance to the complainant and to the alleged wrongdoer that they are getting a fair shake in the process and that the outcome is not pre-ordained. When an internal fact-finder conducts the investigation, even if done so in a neutral manner, there can remain the perception of bias.
Time is of the essence
A complaint made by employee can start the rumor mill churning quickly, which, in turn, affects productivity and morale. It is critical both for the process itself, and to minimize the impact on the company, to initiate an investigation promptly. Moreover, often the alleged wrongdoer is placed on administrative leave; again, you’re not only down an employee indefinitely, but the uncertainty to everyone can be disruptive. Time is also of the essence to ensure a solid investigation. The more time that passes between the time the complaint is made and the time interviews begin damages the integrity of the investigation: memories and initial impressions fade, and employees talk to one another. Even if it’s not with the intent to collude, the rumor mill impacts individuals’ memories. Your Human Resources person likely has a full workload. When a complaint is made, it’s often difficult for the designated HR representative to put aside all of his/her work to carve out sufficient time to conduct a thorough investigation and prepare a complete report.
In the event of subsequent litigation, it is important that the investigatory process and report are thorough and supported. Having an independent fact-finder shows that the employer took the complaint seriously. The independent fact-finder’s established methods of approaching an investigation and written report will further assist in recalling events as litigation last for years afterwards.
Skill and expertise
A well-conducted investigation serves two primary functions: 1) to asses the legitimacy of the complaint in order to make an informed decision as to what action, if any, should be taken; and 2) in the event of a subsequent lawsuit, to have a well conducted, independent investigation and thorough report upon which to rely. Attaining these goals requires skill and experience. Skill in being able to elicit relevant information from employees and experience in being able to identify the relevant issues key components of the investigation so that it is focused and helpful. Utilizing my prior employment litigation experience, I am able to gather the information necessary to both the employer—to make solid business decisions—and to the employer’s counsel—to make solid legal decisions.