Independent workplace investigators in California must meet specific legal standards, and handing the job to an external HR consultant without the right credentials can expose your company to serious liability. Here is what employers need to know before assigning someone to investigate a workplace complaint.
Here at Sherman Law Corporation, we are often asked under what circumstances California employers should retain an independent outside investigator to conduct an investigation if internal human resources personnel can perform the investigation. Like all answers in law, it depends.
Internal Investigations By Employees Are Too Biased
Internal experienced human resource personnel must fully understand the variety and nature of the investigation at issue, including the legal elements to prove the claims and defenses. The internal employee must not only have the skill set to conduct the type of investigation involved but also, if litigation follows, testify as a competent, unbiased, qualified investigator. This means that the investigator must be able to withstand rigorous cross-examination by experienced employment counsel. Even if the internal employee is experienced, to the extent that the documentation is not bulletproof, it will be subject to rigorous attack. Where evidence in litigation disputes the findings of the investigation, explicit or implicit pressure to protect the organization (for ex, when the investigator is in the same chain of command as the accused) by the internal investigator, even if untrue, may convince a jury that the internal investigator is biased in favor of his/her employer.
In addition, any ongoing relationship dynamics given the level or position of the employee being investigated, witnesses, or others involved with the internal employee put the investigation at risk and significantly weigh in favor of retaining independent counsel. Familiarity with guidelines/laws governing legal issues that may arise, such as surveillance, unlawfully recording confidential communications, invasion of privacy, retaliation/defamation complaints, and use of confidential non-public company information, as well as understanding the standards applicable to proper preservation and collection of all potentially relevant social media and electronically stored information on all devices may also subject the internal investigator to attack if litigation follows.
Even if it is determined the internal investigator is the proper person to conduct the investigation, whether the investigator has the time and resources to conduct a timely, thorough, and fair investigation is important. Delays due to limited resources or incomplete documentation can have a negative impact on the investigation process. If the investigation includes harassment, discrimination, or retaliation allegations, the law requires a prompt and thorough investigation such that time is truly of the essence.
External Investigators Are Most Effective
When external investigators are retained, careful consideration must be raised as to who is directing the investigation, and will it be subject to privilege? Who will define the scope of the investigation and treatment of complaints outside the scope of the investigation? Is the investigator permitted to do what is required? Is the investigator given access to information, records, and critical relevant data that will allow the investigator to authenticate the evidence? Will the investigator appear to be independent and credible?
The most important ethical dilemma exists when there is pressure, implicit or explicit, to influence the finding of an investigation. Internal investigators are most often attacked for lack of impartiality and objectivity given their roles in the organization. To the extent that the investigator knows some of the parties, is aware of previous unrelated issues, is accused of breaching confidentiality, and/or displays a vested interest in the outcome at all, the investigation may create employer liability.
Further, the organizational culture, hierarchy, and politics, regardless of the size of the employer, can create ethical challenges for the internal investigator. Of particular concern to an in-house investigator is the potential impact the investigation will have on ongoing relationships with those involved in the investigation.
Lastly, retaining independent experienced employment counsel trained in workplace investigations in all cases of actual or threatened litigation is undoubtedly the best defense. The long and short of it is that if an investigation is being conducted in response to a lawyer letter or a lawsuit, retaining an experienced outside investigator should be a no-brainer for any employer.
Speak To An Experienced Workplace Investigator
We are often called in to serve as independent investigators by employers or their employment attorneys. Typically, an internal employee complaint is lodged, and for a variety of reasons, the employer retains us to serve as an independent investigator to make factual findings. We conduct the investigation, report to the employer our factual findings, and serve as a witness should the matter proceed to litigation.
Lisa Sherman has extensive experience performing independent workplace investigations. For more information, feel free to contact the Sherman Law Corporation office at 323-488-2087.
Frequently Asked Questions About Retaining Outside Independent Workplace Investigators
1. What is an independent workplace investigator?
An independent workplace investigator is a neutral third party, usually an attorney or trained professional, hired to look into employee complaints like harassment, discrimination, or retaliation. They are not part of the company, so their findings are seen as unbiased and credible.
2. When does a California employer need to hire an outside workplace investigator?
You should strongly consider hiring an outside investigator when the complaint involves a senior employee, when HR may look biased, or when a lawsuit or lawyer letter is already involved. California law requires prompt and thorough investigations for harassment, discrimination, and retaliation claims, and an outside investigator helps you meet that standard.
3. Why can’t HR just handle the workplace investigation internally?
HR can handle some investigations, but internal investigators can be seen as biased — especially if they work under the same leadership as the person being accused. If the investigation ends up in court, a jury may not trust the findings. Cases involving workplace harassment or retaliation are especially high-risk for internal bias claims.
4. What happens if a workplace investigation is done poorly?
A poorly handled investigation can make things much worse for an employer. If the process was biased, rushed, or incomplete, it can be used as evidence against you in court. California employers can face serious liability for employment discrimination or wrongful termination claims when an investigation is not done right. A thorough, well-documented investigation is one of your best legal defenses.
5. Can a workplace investigation be protected by attorney-client privilege?
It depends on how the investigation is set up. When a licensed attorney directs or conducts the investigation, there is a stronger argument for privilege protection. This is one of the key reasons many employers choose to work with employment law attorneys who specialize in workplace investigations.
6. What does an outside workplace investigator actually do?
An outside investigator reviews the complaint, interviews witnesses, collects relevant records and evidence, and writes up factual findings. If the case goes to court, they can also serve as a neutral witness. Lisa Sherman has extensive experience conducting these investigations for California employers and their attorneys.
7. How do I hire an independent workplace investigator in California?
Contact the Sherman Law Corporation to speak with an experienced California workplace investigator. You can reach our office at 323-488-2087. We work with employers and employment attorneys throughout California to conduct fair, thorough, and legally sound investigations.
