Before Doing Your Own Workplace Investigation—a Cautionary Tale

A few years ago, a friend of mine was part of an organization that received complaints about one of its leaders, which led to questions about whether the leader should be fired. The organization debated internally about what to do, and after sitting on the allegations for months, management initiated its own investigation with the help of some inexperienced consultants.

The results were disastrous, and the organization eventually ended up retaining a law firm to redo the investigation. In fact, the internal backlash from the original investigation was so strong that the organization had to commission a third investigation into why the original investigation went so poorly.

In the end, the debacle dragged out so long that nobody felt like they had gotten a fair shake. Years after the organization first learned the allegations, it was still trying to recover from the fallout of the bungled operation.

As you consider the place internal investigations have in your organization, here are some questions to ask yourself:

1. How do I know my organization is facing circumstances that call for an outside attorney investigator?

You should consider commissioning an investigation when someone (usually in leadership) has been accused of acting in a way that significantly violates your organization’s standards of conduct or has done something that may create legal liabilities for you. For example:

• A CEO is accused of misconduct.
• A mid-level manager is accused of discriminating against or harassing multiple employees.
• There are internal allegations that implicate sensitive areas like whistleblower protections, criminal law, or civil rights.
• An employee has done something that has resulted in negative media publicity, and the organization must decide how to respond.

Ideally, your organization will hire a firm to come in and investigate as soon as the triggering event happens. In that case, evidence is more likely to be preserved and you’ll reduce your organization’s exposure to further liability.

2. Do we really need an attorney to do the investigation?

Bringing in attorneys to conduct your investigation is a good idea for three main reasons. First, attorneys are trained to analyze the law and look for specific, legally significant facts. Second, if the scope of the investigation involves an analysis of risk, attorneys can advise your organization on your exposure to liability under the law. Third, when an attorney gathers information for the purposes of giving you legal advice, the information the attorney learns can often be kept confidential (to state the obvious, only attorneys can invoke the attorney-client privilege).

3. What is it like when a firm does an internal investigation?

Attorney investigators identify relevant evidence that needs to be preserved and develop a litigation hold letter to help employees understand their obligations to preserve evidence. They also study documentary evidence and create a list of employees to be interviewed. Depending on the needs of the client, the firm may provide its findings orally or through an investigative report.

Deciding what to put into a report is a strategic choice that can have massive implications, and the firm you hire should make sure you’re fully aware of them. For example, sometimes a company may want to ensure that what is learned in the investigative interviews stays confidential. There are ways to do that. In other cases, there are strategic reasons a company may want outsiders to know the results. The most important thing is to ensure that your investigative team brings experience and a keen understanding of the legal implications of this range of choices to the table.

I spent a significant part of my legal career leading largescale investigations for the U.S. Department of Justice. If there’s anything I learned during that time, it’s that leaders often fail to detect their organization’s legal problems until it’s too late. In addition to a limited understanding of the law, leadership’s closeness to the situation sometimes hampers their objectiveness. That is, investigating sensitive workplace situations is like surgery—it’s generally not advisable to perform it on yourself.

With all that in mind, when your organization faces an internal controversy that could lead to liability, think twice before trying to figure it out on your own. There are firms with seasoned investigators who know how to get to the bottom of things and can provide legal advice that will help your organization figure out the best way forward. Not only that, but a well-executed investigation fosters a culture of accountability and trust, which is an investment in the long-term health of your organization.

Questions about workplace investigations? We can help! Contact a member of the Sands Anderson Employment Team for assistance.