Workplace investigations are crucial to maintaining compliance and addressing internal issues within any organization. From allegations of harassment to claims of discrimination or misconduct, companies often find themselves at a crossroads when deciding who should handle the investigation. Should it be done internally, or is it better to hire an external investigator? Both options have their benefits and challenges, and the right choice depends on the specific circumstances of each case.
When Internal Investigations Make Sense
For many workplace issues, an internal investigation — conducted by HR personnel, compliance officers, or even in-house legal counsel — can be a practical and effective approach. Internal investigations can be beneficial when:
- The case is low-risk and straightforward. For minor policy violations or routine complaints that don’t involve senior leadership, an internal investigator may be the most efficient and cost-effective choice.
- The company has trained personnel. Some HR professionals and legal counsel have experience conducting investigations and can handle the process effectively while maintaining compliance with company policies.
- Familiarity with the organization is an advantage. Internal investigators already understand company policies, culture, and reporting structures, which can sometimes streamline the investigative process.
However, there are potential drawbacks to consider. Internal investigators — especially those who also have other job responsibilities — may lack the time, expertise, or impartiality needed for complex investigations. Additionally, if the investigation is later challenged in court, an internal investigator’s credibility may come into question, particularly if they have close ties to company leadership.
The Role of Attorneys in Workplace Investigations
Companies often turn to their trusted litigation attorneys to conduct investigations, which can make sense in certain situations. Attorneys bring legal knowledge and an understanding of potential liabilities, which can be beneficial in navigating sensitive workplace issues. However, there are important considerations to keep in mind:
- Potential conflicts of interest. If a litigation attorney conducts an investigation, they may later be disqualified from representing the company in any related legal proceedings because they become a fact witness. This can create challenges if the case escalates to litigation.
- Employee perception. Employees may be hesitant to speak freely with an attorney who they perceive as being aligned with the company’s legal defense strategy, which can impact the quality of the information gathered.
- Balancing the roles of legal advisor and investigator. Attorneys are trained to advocate for their clients, but an investigator’s role is to remain neutral and fact-focused. Mixing these roles can create unintended biases in the process.
This doesn’t mean attorneys shouldn’t be involved in workplace investigations — far from it. Attorneys play a crucial role in advising on legal risks, ensuring compliance, and guiding the company through the investigation’s aftermath. However, in some situations, a dedicated external investigator may be the better option.
When to Consider Hiring an External Investigator
Certain cases are best handled by an impartial, third-party investigator. An external investigator is often the right choice when:
- Allegations involve senior executives, HR personnel, or legal counsel. Investigations must be seen as neutral to maintain credibility. If the accused holds a high-level position, an internal investigation may be perceived as biased.
- There is potential for significant legal or financial exposure. If the findings could result in lawsuits, regulatory action, or reputational damage, an external investigator ensures the process is conducted in a way that will hold up to scrutiny.
- The situation is highly sensitive or complex. Cases involving widespread discrimination claims, harassment, or retaliation often require specialized expertise that an external investigator can provide.
- Internal resources are limited. If HR and legal teams are already stretched thin, bringing in an external investigator can ensure a timely and thorough process without overburdening internal staff.
How to Choose the Right External Investigator
If your company determines that hiring an external investigator is the best course of action, it’s important to choose the right professional for the job. Consider the following factors:
- Experience and expertise. Look for an investigator with a background in workplace investigations, employment law, or HR compliance.
- Impartiality. Ensure the investigator has no prior relationship with any parties involved to maintain neutrality.
- Investigative skills. Strong interview techniques, evidence analysis, and reporting skills are essential for conducting a thorough and defensible investigation.
- Understanding of legal and compliance standards. While the investigator shouldn’t provide legal advice, they should be familiar with employment laws and regulations relevant to the case.
Balancing Both Approaches
There is no one-size-fits-all answer when it comes to workplace investigations. In some cases, an internal investigation is the most practical and cost-effective approach. In others, the risks and complexities make an external investigator the smarter choice.
What’s most important is ensuring that the investigation is conducted fairly, thoroughly, and in a way that protects the company while maintaining credibility with employees and external stakeholders.
By carefully weighing the advantages and risks of each approach, companies can make informed decisions that align with their needs, resources, and legal obligations — ensuring workplace investigations are handled effectively and ethically.
Feel free to reach out to Ablin Law today for support with all aspects of workplace investigations. We’re here to help!
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