Harvey Weinstein, Kevin Spacey, Louis C.K., Garrison Keeler, Matt Lauer … is someone in your office next? With the #MeToo movement showing no signs of slowing, business owners should be prepared to confront the demons in their own offices. As my Vandeventer Black colleague, Michael D. Pierce, explained recently in a related article, employers need to evaluate, and where appropriate, strengthen, their anti-harassment policies, complaint procedures, and training, and plan how they will investigate any complaints. An investigation must be conducted promptly after the employer learns of the allegations. It must be thorough, impartial, and safeguard the complaining employee and witnesses against retaliation. A critical element of any workplace investigation is deciding who will conduct the investigation.
An effective investigation should be conducted by someone who is objective, knows how to interview witnesses and document evidence, and understands the legal ramifications of the allegations and facts. The goal of the workplace investigation is to determine what happened and what, if any, corrective action should be taken to remedy any problems and prevent recurrences. Should the complaining employee pursue a lawsuit, the investigation can be a key component to the business’s defense and may help shield the business from liability.
Businesses have several options in choosing an investigator: a) the business’s human resources manager, b) another manager, c) an outside consultant, or d) an attorney. An experienced human resources manager is familiar with employment laws and may have experience, or training, in conducting investigations. The human resources manager also knows all the players in any workplace drama. That knowledge can be an advantage in understanding the facts, but also can be a disadvantage because the human resources manager may appear biased based on his or her workplace relationships and the company’s reporting structure.
Those problems are magnified when the alleged harasser has a high-level position in the company, particularly if he or she outranks the human resources manager. For that reason, businesses sometimes tap a manager from outside the human resources department to conduct a workplace investigation. The obvious drawback to that option, though, is that such an investigator is likely unfamiliar with employment laws and investigations. The better choice may be an outside human resources consultant, who understands the law and investigations and can be more objective than an insider.
Yet another option is to retain an employment law attorney to conduct the workplace investigation. Because a business’s in-house counsel may be subject to the same perceptions of bias as its human resources department, the business should consider hiring outside counsel to conduct the investigation. By definition, an employment law attorney knows the employment laws and understands the applicable burdens of proof. Attorneys are trained in interviewing witnesses and collecting evidence. Their litigation experience assists in credibility determinations and in gauging how the evidence would be assessed by a jury. In some circumstances, the attorney’s conclusions and recommendations may be protected from disclosure by the attorney-client privilege or attorney-work product doctrine. Before engaging an external attorney as investigator, however, the attorney and business should evaluate the implications of the attorney’s role as investigator, including whether that role would preclude him or her from representing the business in any related litigation.
In short, careful planning is important to effective investigations of harassment complaints. Businesses should carefully consider which investigator to use as part of planning for and responding to such complaints. The employment law attorneys at Vandeventer Black LLP can assist you in making that decision and, where appropriate, conduct the workplace investigation.