Allegations of workplace misconduct can occur in any organization, in any industry. In investigating the merits of such allegations, companies need to be diligent about conducting full, fair and timely inquiries and interviews, and concluding matters as soon as is practical after reviewing the evidence gathered.
There are several potential internal investigation pitfalls involving your choice of investigator that can jeopardize your company’s position if you are not careful. If you aren’t sure whether your internal investigations give rise to potential conflicts of interest, read on:
Choosing an Investigator
The investigator (or team of investigators) needs to be able to conduct full, thorough and impartial investigations. Generally, this means that your investigator should not have any kind of stake in the investigation, or in its outcome.
Whether you choose a member of your own human resources or legal team or decide to engage an external investigator, he or she must have the objectivity needed to gather and interpret facts without being influenced one way or the other. For that reason, it is never a good idea to give investigatory authority to someone who has a supervisory role over someone involved in the investigation.
What’s the Risk?
Choosing an investigator who has either real, material conflicts of interest, or who could be perceived as having a conflict of interest, can do more damage than just making your company look unprofessional; it can jeopardize the integrity of the entire investigation. If the matter is litigated in court, your company may have legal exposure as a result.
When the Investigating Attorney Represents the Company in Subsequent Legal Action
Another pitfall involves an investigator who has no apparent conflicts of interests at the time of the investigation, but who may have conflicts due to their ongoing relationship with the company in question.
For example, let’s say your organization retains a law firm to conduct a workplace investigation. This is generally a smart move, as doing so can make the investigation as objective, thorough and professional as possible. Using an external investigator can also help witnesses and employees feel more free about sharing what they know, without fear of recrimination.
Let’s say the investigation was concluded, and that the investigator found in favor of your company after reviewing all of the evidence. The employee at the subject of the inquiry was not pleased with the outcome and has decided to take the company to court. Some companies make the mistake of thinking that, because they already have an ongoing working relationship with that law firm and because the firm is already knowledgeable about the investigation, that it only makes sense to hire the law firm to handle the litigation too.
By agreeing to represent your company in litigation related to an investigation the firm handled, that law firm may actually be creating a conflict of interest that could put the company at risk. The law firm obviously has a stake in the outcome of the litigation related to the investigation itself, so he or she may be called as a witness to testify during litigation.
Clearly Define – and Stick to – Relationships with Attorneys and External Investigators
Hiring an external investigator, whether an attorney or private investigator, is a smart way to avoid potential conflicts of interest. Don’t inadvertently create additional conflicts by hiring an attorney to handle both the investigation and subsequent litigation.