Internal Investigations: The Importance in Hiring the Right Person to do the Right Job

Whether you operate a large corporation or own a small business, it is a good idea to hire an investigator when an employee and outside person accuses the employer of any kind of misconduct or harassment. Although it may be more costly, it is wise to hire an outside investigator to conduct the investigation from the beginning to the end. Far too often companies opt to “cut corners” with regards to hiring the proper person and conduct the investigation and often ends up hurting the employer in the end.

Who an employer assigns to conduct an investigation is one of the most important factors an employer should take into account once a complaint has been made. Naturally one of the employer’s first instincts is to direct the complaining party to the in-house human resources department or if available, in-house counsel. This reaction can be problematic for the employer if the case ever were to proceed to trial. First, the in-house human resource person assigned to the investigation will appear to lack objectivity and probably not know the possible legal ramifications of failing to conduct a thorough investigation.

Recently settled case law, especially for claims in the Federal Courts, signify that courts are finding that in-house counsel make poor internal investigators for the employer. The counsel/investigator may know the ins and outs of conducting a thorough investigation, but when trial comes, there is a conflict of interest. The courts on numerous occasions pointed out that an internal investigator is often a key witness for both the employer and the one bringing the complaint because he is the fact-finder on the ground. This is problematic because both parties want to use the information that the investigator found, but because he is in-house counsel for the employer, he is often bound by his attorney ethical duties and is barred from doing so. It will pay off, especially if the complaint makes its way to a courtroom, to hire an outside attorney to conduct the internal investigation. See EEOC v. Spitzer (N.D. Ohio 2013)

  What type of an investigation is conducted is understandably just as important as the person chosen to carry out the investigation. The investigation should start promptly after receiving a complaint or when the employer decides an investigation is necessary. The investigator will first have to decide the scope of the investigation. If the scope is too inclusive, some facts may be missed. The investigator must next decide who to interview. Deciding the order and technique in which to interview the potential witnesses is equally as important. Lastly, if it is an employee who made the complaint, the investigator needs to decide the employee’s status during the investigation after taking into account the possible ramifications of the decision.

There are a lot of factors to take into account when an employer decides that an internal investigation is necessary and that is why it is extremely important to hire the right person to conduct a proper investigation. This can be the difference between the employer paying out thousands of dollars to the complainant and paying nothing. If you are considering conducting an internal investigation and want an attorney with over thirty years of experience, call us at the Law office of Richard Klauer, P.C. and we will be happy to speak with you.