When allegations of workplace misconduct arise, companies have a duty to conduct full, fair and prompt investigations. Handling those matters appropriately from the start is critical, especially when the alleged misconduct is illegal in nature and federal or state law enforcement is involved in the investigation.
In certain circumstances, companies are obligated to report misconduct to law enforcement. This includes situations where potential fraud may have affected a publicly-traded company’s stock price, situations where the employee misconduct could be a threat to public safety (such as child pornography or terrorism allegations), and companies that secure federal and state government contracts.
Whether your company is required to involve law enforcement or simply chooses to do so, there are a few key points to keep in mind.
1. Cooperation while Maintaining Confidentiality.
First, it may seem like a “no-brainer”, but those involved in the internal investigation should expect to reasonably cooperate with law enforcement on the investigation. The ultimate goal of all involved is to ascertain the facts, and get to the bottom of what did (or didn’t) occur. To that end, cooperation among investigators is important. Depending on the industry or type of business, the company may be obligated by law to share certain information.
However, ensuring confidentiality is still a critical component for the integrity of the investigation. Failing to do so could hamper the success of investigatory efforts, by allowing the subject of the inquiry the opportunity to cover his or her tracks or retaliate against whistleblowers. Disclosing information about the investigation could also impact the company and its ability to defend against later legal action.
2. The Attorney-Client Privilege and Upjohn Warnings.
Those involved in internal investigations are probably already familiar with the importance of providing so-called “Upjohn Warnings”, making it clear to employees being interviewed that the attorney represents the company itself, and not the employees. An important element of the Upjohnrequirement is to make it clear that the attorney-client privilege, and any decision to waive that privilege, belongs to the company.
In the context of an investigation where law enforcement is involved, the company should disclose this fact, especially if it is reasonable to think that the company will share its findings with the law enforcement agency or officials. As with all Upjohn notifications, it’s important to document that the employee acknowledged receipt and understanding of the notice.
3. Ensure Objectivity and Competence of Internal Investigators.
Don’t make the mistake of assuming that, because law enforcement is involved, the company is absolved of any responsibility to conduct its own investigation. Whether or not the authorities are involved, the company still needs its own investigation team.
As with any internal investigation, choose a leader and participants who can be objective and impartial. Care must be taken to ensure there are no real or perceived conflicts of interest between the investigators and the employees participating in the investigation.
Investigators must also be competent, with the experience and knowledge to handle potentially delicate matters with skill and care.
Regardless of the participants in any internal investigation, the company and its investigators should act professionally, and make efforts to ensure the investigation progresses in a timely, but thorough, manner for all those involved.