How Internal Investigations Can Impact Business, Litigation, and Employee Morale
The modern workplace is an ever-changing landscape, especially given frequent changes to harassment/discrimination laws and policies. Despite best efforts by HR managers to keep employees up to date on appropriate behavior, allegations of misconduct still arise. In these instances, both employer and employee will generally seek legal representation, but only the employer is impacted by an additional practice area – internal investigations. Casual inquiries and rote reassurances are insufficient when addressing matters of harassment, discrimination, or other unlawful conduct. A properly conducted internal investigation helps management maintain credibility among employees and may have a direct impact on the outcome of any resulting litigation.
Amidst claims of misconduct, a thorough internal investigation is a must. Unless an employer can prove adequate measures were taken to both prevent harassment and investigate and address complaints of workplace misconduct when made, the organization can be held responsible for acts of harassment and other unlawful behaviors by supervisors and other employees.
With so much riding on the outcome, employers may naturally ask what constitutes a “proper” investigation. Clear communication, impartiality, attorney-client privilege, and responsiveness are all key factors.
Accurate communication is essential to establishing the investigation’s scope and objectives and the roles of all involved. This helps ensure an efficient process and useful results. For instance, initiating a witness interview with a reminder that the interviewer does not legally represent the interviewee helps to manage the employee’s expectations and clarifies the circumstances under which the interview is being conducted.
Internal investigations should be led only by a qualified, objective individual with knowledge of relevant laws, regulations, and policies. That team member can be an HR manager, in-house attorney, or even outside legal counsel. If the investigation is not led by a lawyer, a lawyer should always be present during interviews and in communications among management about the investigation. Regardless of who leads the proceedings, asking open-ended, nonaggressive questions helps to create an environment of impartiality and rapport with witnesses, and encourages them to be forthcoming. However, this is where an understanding of attorney-client privilege becomes important.
It is a misconception that anything told to a lawyer is privileged information. The presence of an attorney does not mean they are serving in a legal capacity. During internal investigations, attorneys (especially in-house counsel) frequently act as business or HR consultants rather than as legal advisors. In such cases, information disclosed to them is not protected by the attorney-client privilege and can be subject to disclosure in court.
The misconception that all communications with an attorney are privileged is significant because it creates a legal gray area. When an attorney is involved in “dual-purpose communications” regarding both business and legal advice, does the attorney-client privilege apply? The United States Supreme Court is weighing that question this month, as it hears “In re Grand Jury.” Until clarification is provided, HR managers and other executives are reminded that information revealed in such communications may be subject to disclosure in litigation. For this reason, it is important to take steps to safeguard and clearly mark communications that are in the nature of legal advice, attorney mental impressions, and materials prepared in anticipation of litigation and to avoid co-mingling them with other, non-privileged communications (such as those addressing purely business and public relations issues). It is also important not to promise interviewees that the information they provide will be kept confidential. Rather, interviewers can reassure witnesses that measures will be taken to protect their identity, to the extent possible, but that the interviewer does not “represent” the witness and cannot offer legal advice or make promises of confidentiality.
Lastly, responsiveness is important from the outset of an investigation through its conclusion. Beginning an inquiry promptly when a complaint is made helps employees feel their concerns are taken seriously. All parties – including the employee who made the complaint, the employee who is the complaint’s subject, and any witnesses – should be kept aware of the investigation’s progress and any pertinent developments.
At the end of the investigation, its findings should be communicated to all parties involved. The HR manager should also directly report back to the employee who made the complaint. In addition, within six months of the investigation, a follow-up with that employee should be conducted to determine if retaliation is occurring.
Instances of workplace harassment and discrimination are uncomfortable matters for both an organization and its workers. Careful and efficient internal investigations, however, can ensure accountability, protect companies, and reassure employees. Bleakley Platt & Schmidt’s Internal Investigations Practice Group has the experience and expertise to thoroughly and discreetly get to the bottom of these matters. Contact Susan E. Galvão at sgalvao@bpslaw.com or (914) 287-6193.