Why Lawyers Make Good Workplace Investigators
June 9, 2021
By: Mary E. Funk, Frances M. Haas
It is time for the latest installment of our series relating to workplace investigations. We’ve already looked at the increasing use of workplace investigations and given our perspective on when you should bring in a professional investigator.
Once you have determined the need for an external investigator, the next step is deciding who that person should be. There are important minimal qualifications any investigator must have. But some of the most important characteristics are found in employment lawyers.
When it comes to investigating workplace discrimination or harassment, or any matter that involves employees, knowledge of employment law and the potential ramifications of how the investigation is conducted, who is interviewed, and what documents are maintained are critical in reducing exposure to liability.
Subject Matter Experts
Attorneys bring a collection of experiences that make them uniquely qualified to lead workplace investigations, including:
- Responding to discovery requests
- Considering the concept of similarly-situated employees
- Trying employment law cases
- Deposing and cross-examining witnesses
- Judging witness credibility
- Evaluating the value of cases
- Mediating such matters
- Investigating claims to prepare responses to administrative charges.
Attorneys are also in a position to identify latent issues or recognize other potentially harmful behavior that may not have initially been part of the complaint and may be missed by the less experienced.
Consider this scenario:
Employee Olivia, complains to the new human resources manager about her supervisor, Sam, alleging she feels micromanaged and targeted because of her race and religion. Olivia alleges other employees have witnessed Sam’s remarks and Olivia thinks she missed out on a promotion because of her protected class status.
This appears to be a straightforward investigation involving a few employees and the potential actions of one supervisor against one employee. However, in the course of the investigation, the attorney-investigator may identify other similar-situated employees who may also have expressed similar concerns.
- Does reviewing payroll records for purposes of that evaluation, also reveal potential Fair Labor Standards Act issues or Lilly Ledbetter concerns?
- Have Sam’s subordinate employees been commenting on Facebook about their pay or working conditions?
- Have they engaged in protected and concerted activity under the National Labor Relations Act?
- What if other misconduct is identified during the course of the investigation, such as another supervisor in another department who knew about the issues with Sam and had not taken any action?
- What if there had been prior complaints from past employees to the former human resources manager, who has recently been fired?
The spinning of the facts to reveal a very different situation than initially anticipated is not an unlikely hypothetical. It happens all… the… time. Attorneys can recognize this set up and know when, where, and how to dig deeper.
When interviewing witnesses or providing findings to a client, it’s critical that any investigator’s work rise above challenges to honesty and truthfulness. Iowa attorneys are governed by the Rules of Professional Conduct, and have ethical obligations to deliver legal services, including conducting workplace investigations, without improper bias, and with honesty and integrity.
Attorneys serving as investigators also do not check their obligation to maintain confidences at the door. A company should certainly consider whether it wants the workplace investigation to be conducted under the protection of the attorney-client privilege. While an organization may later need or want to waive that privilege to defend itself in administrative proceedings or litigation, because that decision may not occur until a later date, it is advisable to take steps from the outset to protect the investigation. The protection afforded by the attorney-client privilege cannot be retroactively asserted.
Attorneys are trained to use their judgment, analyze difficult and complex issues, identify potential new issues for consideration, and assess witness credibility. These tools are essential in every investigation. Attorneys use these skills regularly and are comfortable drawing judgments and assessing the evidence. Judges and juries may assign more credibility to an attorney-conducted investigation as opposed to one led by an internal human resources professional who may be presumed to have an internal company-leaning bias. And retaining an attorney investigator will also show employees how seriously the company is taking the matter.