Workplace Investigations: DIY or Hire a Pro?

BY Gene R. Thornton, Esq., AWI-CH

I am often asked by HR managers: “When should I incur the expense of hiring an outside professional workplace investigator and when is it okay to do it myself?”  There are a number of considerations that factor into this decision.

Factor #1: Multiple Complainants.  If there is just one employee making a complaint, then it may be sufficient for HR to handle the investigation in-house.  But if there are five complainants, then an outside workplace investigator should almost certainly be retained.  Sometimes, what starts out as a complaint by just one person reveals additional employees who were allegedly subjected to similar conduct, but did not voice a formal complaint.  In that even, employers may want to turn the investigation over to an outside professional, in which case the investigation should probably begin anew with witnesses being re-interviewed by the outside investigator.  That being the case, maybe it is just to hire outside from the beginning.

Factor #2: Multiple Respondents.  Similarly, if there is just one respondent to a complaint, then an in-house investigator may be fine.  But if there are three respondents, then a professional workplace investigator should almost certainly be retained.

Factor #3: Incidents.  Even if there is just one complainant and one respondent, there may be multiple alleged incidents of misconduct.  The more alleged incidents there are, the more appropriate it is to hire an professional investigator from outside.

Factor #4: Systemic Discrimination.  Systemic discrimination generally occurs when a facially neutral policy or procedure results in an adverse impact on a protected class of employees.  A common example is a widespread incidence of female employees with similar qualifications being paid less than their male counterparts for the same work.  Complaints about the legality of a mass layoff are another form of alleged systemic discrimination.  Investigations of systemic workplace discrimination should generally be referred to an outside workplace investigator.

Factor #5: A Complaint Against the C-Suite.  If the complaint is against the Chief Executive Officer, Chief Financial Officer, or Chief Information Offer—persons within the so-called “C-Suite”—or another highly placed employee, then I recommend hiring a professional workplace investigator.  It is unreasonable to expect subordinate employees to be able to conduct a fair and unbiased investigation of allegations against their own higher-ups or key employees within an organization.

Factor #6: Allegations of Criminal Conduct.  Allegations of workplace violence definitely warrant using an outside professional workplace investigator, perhaps one who specializes in workplace violence situations.  Allegations of sexual assault, embezzlement, sabotage, and theft of computers or product warrant bringing in an expert investigator.

Factor #7: Investigations Into High-Profile Issues.  Currently, so-called #MeToo situations are frequently in the news.  Similarly, LGBTQ discrimination is currently a hot topic in human resources and employment law.  Allegations of these kinds militate in favor of hiring an outside investigator.

Factor #8: Investigations Likely to be Covered in the Press or Electronic Media.  Allegations of the #MeToo and LGBTQ variety also have a tendency to end up in the print or electronic media.  But lower-profile discrimination and harassment can also end up in the news when celebrities, public officials, or sensational allegations are involved.  In such situations, it is best to bring in an outside professional investigator.

Factor #9: Lawyered-Up Parties.  If a complainant or respondent has already gone to the trouble and expense of hiring a lawyer, then I strongly recommend that the investigator not only be hired from outside, but also be both a lawyer and an Association of Workplace Investigators Certificate Holder (AWI-CH) as I am.

Factor #10: Investigations of Allegations of Violations of the Law.  An investigation of an alleged violation of a mere internal policy can probably be handled in-house, whereas if the allegations implicate one or more state anti-discrimination statutes or common law claims in the workplace context such as defamation by a negative reference or false imprisonment, then an outside investigator is more critical.

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