Handle Investigations with Care

03/05/07

A line worker just came to you in tears, saying her supervisor had for the second time in a week brushed up against her suggestively. The contact, she assured you, was unwelcome.

You steel yourself and call the supervisor, telling him of the report. His response: “She said I did what?! She’s a liar. She’s probably mad that I passed her over for that promotion last week.” You tell him the law requires you to investigate all harassment complaints quickly; you’ll be in touch.

You sigh, pulling out a legal pad to sketch out how you’ll conduct the investigation.

Not so fast! That’s the word from Kenneth A. Knox, an attorney with Fisher & Phillips in Fort Lauderdale, Florida. Before launching an investigation yourself, consider two other options hiring a consultant who specializes in such investigations, or hiring an attorney.

Speaking to a group of HR professionals recently, Knox said, “You need to be concerned about a jury even at this stage. What will six people think about what we did? Was the company fair?”

Anyone looking over your shoulder like a jury or a plaintiff’s lawyer will consider the many angles to this question. And one such angle will be whether you were fair and objective when conducting an investigation of the incident.

Whether or not you hire an attorney to investigate, Knox advised the group to consult one whenever faced with the need to launch an investigation. “Doing so helps you look at the situation objectively, assess potential liability, and determine your legal obligations,” he said. “You can make a better decision on how to proceed.”

Investigate Internally
Conducting an investigation yourself offers some benefits:

You can move on the investigation right away.

You know your employees and the industry well, sometimes allowing you to cut to the chase quickly.

You’ll save money over hiring an outsider.

But there are drawbacks:
You may strain resources. Who, for instance, will do your job while you spend what may be a considerable amount of time conducting a thorough investigation?

You may lack the expertise necessary to get to the heart of the matter.

You may lack credibility. Workers, for instance, may assume you’ll side with management or popular employees no matter what the facts may be.

The job may be politically sensitive. Said Knox, “Who will investigate a CEO accused of harassment?”

It may be hard to keep facts confidential. And you can assume company gossips will be working overtime.

Hire a Consultant?
Hiring a consultant to conduct an investigation increases employees’ perception that the company intends to be objective. Moreover, the consultant should be experienced in good investigative procedures, and he or she may be able to handle the more politically sensitive investigations.

The downside? It’ll cost you more than an internal investigation. Also, Knox said consultants sometimes tend to be more one-dimensional. “They may ignore additional information that sheds light on other problems within the company.” Last, they probably don’t know the law as well as an attorney.

Hire an Attorney?
Hiring an attorney supplies one key benefit that none of the other options provide: The facts and evidence the attorney garners are protected by the attorney client privilege. That means the attorney’s work is not “discoverable” by the other side in a lawsuit. That includes so-called “work product” letters, memos, and e-mails between the attorney and the employer.

Attorneys also can provide neutrality, confidentiality, credibility, legal knowledge, and expertise in conducting investigations

The downside? Witnesses may be intimidated by an attorney. Another drawback is, of course, the cost.

But it may be worth the expense. After all, said Knox, “An attorney is trained to get the facts. And as an old law school professor of mine used to say, ‘A thimbleful of facts is worth more than a bucket of law.’”

G.Neil has a new Harassment Investigation Kit.