Employers have an affirmative legal duty to conduct a prompt, impartial and thorough investigation into employee complaints involving harassment, discrimination or retaliation. Further, California employers have a duty to investigate alleged incidents or threats of violence in the workplace. When an employer receives a workplace complaint, one of the first issues it must decide is who should investigate the complaint – the company’s internal human resources department or an external investigator? The answer to this question depends largely on the nature of the complaint as well as the experience and qualifications of an organization’s HR personnel.
Using an internal investigator can be more practical, efficient and less costly than hiring an outside investigator. Internal investigators are typically more familiar with the organization’s policies, structure, culture and information systems. Thus, practically speaking, internal investigators can gather evidence more efficiently than external investigators can. Where the risk of legal exposure is low, it may make more sense to use an internal investigator. However, internal HR personnel may often be perceived as lacking impartiality as they may have relationships with the subjects of complaints. This perception can threaten the reliability and effectiveness of an investigation setting up the investigation’s findings to ultimately be challenged.
Improperly handled investigations or investigations that can be challenged as biased or lacking good faith may lead to significant liability for the employer. Employers should consider retaining an external investigator under the following circumstances:
(1) The complaint involves allegations against high level executives or officers.
Human Resources personnel are often supervised by high level executives within an organization. When a complaint is made against an individual in senior leadership of an organization, the impartiality and independence of the HR department will naturally be questioned due to the perceived supervisorial role the executive team likely has over the HR department. Accordingly, to avoid the appearance of lack of impartiality, the employer should retain an external investigator to conduct such investigations.
(2) There is an allegation of bias against the Human Resources department conducting the investigation.
Paramount to any investigation is the investigator’s impartiality and freedom from actual or perceived conflicts of interest. An allegation of bias against the Human Resources department or its internal investigators carries the high risk that any findings resulting from such an investigation will be challenged. If an investigation may be challenged as lacking impartiality or good faith, then any corrective action (or lack of corrective action) an employer takes in reliance upon such an investigation’s findings can lead to significant liability. Therefore, we highly recommend that employers retain an external investigator to conduct workplace investigations where there is an actual or perceived conflict of interest between those tasked with investigating the subject(s) of a complaint.
(3) The Human Resources department lacks the capacity and/or qualified personnel to conduct the investigation.
A poorly conducted investigation can sometimes be more damaging than failing to investigate at all. For example, if an internal investigation failed to interview key witnesses or failed to gather and consider critical evidence, it could be found that the investigation was not conducted in good faith and, therefore, any adverse employment action taken in reliance upon such an investigation could be deemed unlawful.
Accordingly, if there is any doubt regarding the qualifications or abilities of HR personnel to conduct an investigation, employers should strongly consider retaining a qualified external investigator, particularly when a complaint entails higher legal risk. Qualified external workplace investigators in California must be licensed attorneys or private investigators. Importantly, workplace investigations conducted by outside attorneys may be protected by the attorney-client privilege in certain circumstances.
(4) The Complainant is represented by an attorney or has filed a lawsuit or complaint with the EEOC or Civil Rights Department.
These circumstances entail a substantial risk of liability. Accordingly, employers should strongly consider retaining an experienced external workplace investigator to investigate complaints. Hiring an experienced external workplace investigator helps an employer demonstrate that the investigation was conducted in good faith and with independence which can be crucial evidence that may limit an employer’s liability in litigation.
(5) Repeated or multiple complaints involving (i) a pattern of potential misconduct by the same employee or manager, or (ii) practices and policies that disparately impact a certain group of employees.
Employers should consider hiring an external investigator to investigate complaints that indicate the potential existence of a greater, systemic problem such as widespread discrimination or harassment. Repeated or widespread complaints generally increase the potential for seemingly innocuous complaints to escalate into larger, legal problems down the road. Internal investigators who have investigated previous complaints of similar issues involving the same employees or managers may have an unconscious bias towards or against the complainant or respondent based on previous complaints. This bias runs the risk of invalidating an investigation’s findings.
Using an external investigator to handle such investigations increases the likelihood that the investigation will be viewed as impartial and fair. Additionally, hiring an external investigator demonstrates to employees that the employer is taking their complaints seriously. When employees see that their complaints are being taken seriously and handled fairly, they may be less likely to pursue litigation.
For assistance with a workplace investigation, please contact Christine at christine@leelaborlaw.com.