One of the most challenging aspects of a CHRO’s job is conducting workplace investigations into alleged wrongful workplace behavior, and navigating the tricky web of legal duties and potentially emotionally volatile situations.
Expert Allison Musante shares best practices for HR leaders navigating the process, and common mistakes to avoid. Musante is a partner at the employment law firm, Swerdlow Florence Sanchez Swerdlow & Wimmer, based in Los Angeles.
What are the most common mistakes employers make when conducting internal workplace investigations, and how can they be avoided?
I would say a common mistake made by employers is when the employer does not initiate an investigation into a complaint of workplace misconduct because the employee has insisted that they do not want to proceed with the complaint. Many times, employers feel like, if an employee does not want to move forward, their “hands are tied” and they have fulfilled their duties under the law—but that is just not the case.
Generally speaking, once an employer has knowledge of alleged misconduct in the workplace, especially related to claims of discrimination, harassment or retaliation, the law requires the employer to take reasonable and appropriate remedial action to address any alleged wrongdoing, even if the complaint is anonymous or the employee bringing it is reluctant to talk to an investigator.
This is necessary because the alleged unlawful conduct could be affecting other employees in the workplace, and the employer therefore has an obligation to look into the situation and take corrective action, if necessary, to remedy the harassing, discriminatory or retaliatory workplace misconduct.
This mistake can be avoided by understanding that investigations must move forward once an employer has information about alleged workplace misconduct, even if the employee tells the employer they do not want an investigation.
When is it advisable to bring in an outside investigator instead of handling the investigation internally?
All workplace investigations should be conducted by someone with experience in the investigation process. An outside investigator is always advisable when an employer does not have an internal HR department or other staff with the experience to conduct appropriate investigations.
Even when an employer does have internal resources, however, an outside investigator should be considered for a variety of reasons, including when HR or the internal investigator will be a witness or subject in the investigation, when there are questions of impartiality if an internal investigator is used, and when the employer wants to ensure that the investigation is protected by the attorney-client privilege by retaining an attorney investigator to conduct it.
The severity of the allegations and the parties involved also are important factors and often necessitate the hiring of an outside investigator.
How can employers ensure their investigations are both thorough and legally defensible, especially in today’s heightened scrutiny around workplace misconduct?
Federal and state laws require employers to take prompt, reasonable actions to prevent and correct wrongful workplace behavior that includes unlawful harassment, discrimination and retaliation. A thorough, impartial and prompt investigation into employee complaints of potential misconduct in the workplace where factual findings are made based on the allegations satisfy this obligation. To ensure investigations are legally defensible, employers should take the following steps.
First, employers should err on the side of investigating if there is an issue or question as to whether an employee’s complaint should be explored. Any complaint of potential misconduct, especially misconduct related to harassment, discrimination or retaliation, should be investigated to make sure the employer is complying with its legal obligations—even if the employee is reluctant to participate in an investigation.
Second, once a complaint is made, the employer should initiate a prompt, thorough and impartial investigation. This means that an experienced, neutral and impartial investigator is designated (whether internal or external), the investigation begins promptly, meaning as soon as reasonably possible, the investigator is able to gather evidence through witness interviews, including interviewing the person who made the complaint, the person against whom the complaint is made, and any other appropriate witnesses, and the investigator is able to review documentation that the investigator feels is relevant to the scope of the investigation.
Third, once the investigation is concluded, the investigator should render factual findings, which usually means the investigator will decide whether it is more likely than not that the alleged misconduct occurred (this is called a preponderance of the evidence standard). If requested, investigators can also issue findings as to whether an employer’s policies were violated (normally based on a preponderance of the evidence standard).
Finally, after findings are issued, the employer then should take reasonable and appropriate corrective action (if necessary) to address whatever issues were raised in the complaint and substantiated.
What role does attorney-client privilege play in workplace investigations, and how should employers navigate documentation and confidentiality?
An investigation is conducted under the attorney-client privilege when it is conducted at the direction of an attorney internally or when an outside attorney investigator is hired. It is up to the employer as to whether it wants to waive the attorney-client privilege, for example if there is subsequent litigation and the employer wants to defend its actions in handling the employee’s complaint.
Regarding documentation, an investigation report should be marked as confidential and also marked as attorney-client privilege if it was prepared by an attorney or at their direction. Typically, the complainant and respondent in an investigation are not shown the investigator’s written report; they are only told what the findings were and what corrective action was taken.
Overall, it is important for employers to understand that, if the employer waives the privilege concerning an investigation report, it is possible, depending on the court or jurisdiction, that other communications with the investigator also will be discoverable. Therefore, even though an investigation directed by, or conducted by, an attorney is conducted under the attorney-client privilege, it is a smart practice and advisable for employers always to have separate employment counsel providing advice to the employer throughout the investigation process. That way, the employer’s communications with an attorney not conducting the investigation (typically, outside employment counsel) will be protected under the attorney-client privilege and not discoverable if the privilege is waived regarding the investigator and the investigation itself.
