Workplace Investigations: A Q&A with Susan Fentin
As an HR manager, you should be thoroughly investigating every complaint that comes across your desk. And, it’s important to investigate allegations of wrongdoing in a timely manner, but you run the risk of cutting some key corners if you act too quickly.
A fair, prompt, and thorough investigation is your best defense in the case of a lawsuit, but what’s the secret to conducting a successful inquiry? For starters, you should have a complete investigation plan in place before a complaint even gets to your desk—because in HR, it’s not a question of if, but when a complaint will be logged.
Join us for an in-depth webinar on June 21, and learn how to conduct a workplace investigation, stay compliant, and handle employee complaints effectively. You’ll get valuable tips on how to prepare for workplace investigations, stay compliant, and avoid court. As a preview to this event, Susan Fentin—Senior Counsel at Skoler, Abbott & Presser P.C.—has supplied some frequently asked questions—and answers—to this HR topic.
Q: What are the advantages of using an outside investigator?
A: Although human resources can conduct investigations into employee complaints of discrimination, sometimes it’s a good idea to hire an outside investigator.
An outside investigator can be viewed as completely objective and not likely to be swayed by any personal relationships with the complainant or the subject of the complaint. An outside investigator is usually trained in what questions to ask, what order to ask them in, which interviews to conduct first, how to follow up on questions that might lead to additional information, and what information is appropriate to include in a report.
Generally, an outside investigator does not make recommendations about what the employer should do as a result of the investigation; he or she will simply make findings of fact, upon which the employer may choose to rely when determining what consequences are appropriate.
Q: Should we use our labor and employment attorney as the outside investigator if we trust his or her opinion?
A: If an employer uses its labor and employment counsel as the investigator and the investigation leads to litigation, the law firm might be conflicted out of representing the employer in that litigation.
That’s because as the “finder of fact” in the investigation, the attorney who conducted the investigation may be called as a fact witness. Generally, it’s not a good idea to use your labor and employment law firm as the investigator. They may be able to recommend a course of action after the investigation has been concluded, but that would fall into the category of attorney/client communication and would not mean that they could not represent the employer if a lawsuit was filed.
Q: What types of complaints would justify hiring an outside investigator? That would seem to be an expensive option. When would that extra expense be justified?
A: Whom to use as an investigator will depend upon the level of risk involved. If the complaint is about conduct that is not egregious, and where the likelihood of litigation is low, it would probably be OK to have human resources conduct the investigation.
But any time that the complaints are about truly offensive conduct, or if the complaints involve a high-level member of management, hiring an outside investigator would avoid the perception that the situation was being “whitewashed” because human resources would not be inclined to find fault with someone who had control over the company’s operations.
So, when to hire an outside investigator will depend upon the facts and circumstances. Your labor and employment counsel can help you decide whether the circumstances merit hiring an independent investigator.
Learn step-by-step how to conduct a workplace investigation, when you join Susan Fentin on June 21, 2018, for the live webinar: Workplace Investigations: Your Step-by-Step Guide from Complaint to Closure. Click here to reserve your spot today!
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