The Pitfalls of Taking Steps Without Employment Law Counsel

An investigation can begin before an employer realizes it.

HR asks the complainant for additional details. A manager speaks with the accused employee. Leadership starts asking coworkers what happened. By the time counsel is contacted, witnesses may already have been questioned and information may have been gathered or influenced.

Those early steps can affect witness accounts, documentation, confidentiality, and the overall integrity of the investigation.

Just as importantly, who will investigate should be determined before the investigation begins. Depending on the circumstances, the appropriate investigator may be trained internal personnel, an outside investigator, or an attorney.

Counsel should be involved before interviews or investigation planning begin so the appropriate investigator can be selected and the process can be directed properly from the outset.

Emails, text messages, Slack or Teams conversations, photographs, files, and other electronic records can become important evidence in a workplace matter.

The instinct may be to immediately search for, open, copy, forward, download, or organize anything that appears relevant. But electronic information may contain metadata and other information about when and how a file was created, accessed, modified, or transmitted.

Handling electronic evidence without an appropriate preservation and collection process can alter information or later create questions about the integrity of the evidence.

Employers should not independently begin gathering electronic evidence before consulting counsel.

Counsel can determine what needs to be preserved and how collection should occur, including whether IT personnel, forensic professionals, or e-discovery providers should be involved.

Serious workplace complaints can quickly generate emails, messages, notes, and internal discussions.

A manager may email HR with an opinion about the complainant’s credibility. Leadership may begin discussing discipline. HR may document preliminary conclusions before the relevant facts have been established.

If the dispute later results in litigation or an administrative proceeding, those communications and documents may become relevant evidence.

Attorney-client privilege and work-product protections may apply in appropriate circumstances when legal counsel is involved, but those protections are not automatic.

When employers begin investigating, documenting, and discussing a complaint before obtaining legal direction, they may create records outside protections that might otherwise apply to legal advice or attorney-directed work.

Bringing employment counsel in early allows the employer to receive guidance on how legal communications, investigation materials, and related documentation should be handled.

Selecting the wrong investigator can affect the entire process.

An internal HR professional may be appropriate in one matter but have a conflict in another. A supervisor may know the employees involved but lack the independence necessary for a sensitive complaint and may not be skilled in performing investigations. FEHA investigations require independent trained investigators, which is either skilled independent HR or a skilled outside employment attorney or private investigator.

The investigator can influence which witnesses are interviewed, what information is reviewed, how findings are documented, and whether the process is viewed as impartial.

Once someone has already begun interviewing witnesses or shaping the investigation, changing investigators later may not undo what has already occurred.

Counsel should first evaluate the complaint and help determine who should conduct the investigation. Investigation planning should follow that decision, not come before it.

Some complaints may require immediate interim measures, including separating the complainant and accused employee while the allegations are investigated.

Depending on the circumstances, temporary measures may include separating employees, adjusting reporting relationships, placing the accused on leave of absence, modifying schedules or work locations, or taking other appropriate steps.

But those decisions also carry risk.

Moving the employee who complained, reducing their responsibilities, or otherwise changing their working conditions could potentially be viewed as punitive or retaliatory. Failing to address an immediate workplace concern, however, could allow alleged misconduct to continue.

Employment counsel can help determine what interim measures are appropriate and how they should be implemented without unnecessarily disadvantaging the complainant or prejudging the allegations.

The appropriate response will depend on the complaint and the circumstances surrounding it.

Employers may feel pressure to respond decisively as soon as a complaint is received.

Management might immediately suspend or discipline an employee. Leadership might decide the complaint is not credible. Someone may promise confidentiality, tell employees what the company intends to do, or respond substantively to an attorney or government agency before counsel has reviewed the matter.

Each of those decisions can have consequences.

A complaint that initially appears straightforward may also implicate retaliation protections, protected leave, disability accommodation, whistleblower issues, or other employment laws.

Counsel should evaluate the allegations and available information before the employer makes substantive statements, final employment decisions, or commitments about how the matter will be handled.