Anytime an investigation is conducted by an internal employee who is compensated by the Company, the investigation is likely to be challenged, although it does not hold much weight if the investigator is qualified, well-trained in conducting workplace investigations, has no involvement with the issues raised or key persons involved, and the documentation of the investigation is legally-compliant.

While retaining outside unaffiliated trained investigators is highly recommended in all investigations to best refute attacks, the examples below, are the most frequently encountered circumstances in which we strongly recommend retention of an outside investigator:

  • The employer is notified of anticipated litigation (i.e., notice of an administrative charge, lawsuit, secondhand rumors that an employee is suing, an attorney letter, or reporting by an employee, where it is suspected that an attorney has been retained);
  • No one employed by the Company is qualified and trained in conducting legally-compliant workplace investigations and the legal issues raised;
  • Any of the key persons involved include high-level executives, the internal employee was involved in conduct previous investigations;
  • The issues raised involve high-specialized, confidential and/or significant issues and/or potential corporate, criminal and/or personal liability; and
  • Review of documentation related to prior workplace investigations conducted by internal employees evidence deficiencies.

While the time and cost of retaining an outside investigator is never loved by employers, the benefits are significant anytime the employer is on notice of anticipated legal action.

The qualified investigator who has no prior affiliation with the parties is the best person to testify about the investigation and findings, establish the employer’s affirmative defenses that can defeat certain claims, and even limit liability. Most importantly, a well-documented investigation conducted by an outside trained investigator may discourage attorneys from pursuing legal actions, or quickly resolve them.