?Workplace investigations following allegations of misconduct can easily go off the rails if employers don’t know how to do them well. Experts discussed best practices for workplace investigations at the recent American Bar Association’s Labor and Employment Law Conference.
The quality of internal investigations has important ramifications for litigation outcomes. For example, an employer can be held liable for sexual harassment by a supervisor unless it can prove that it exercised care to prevent harassment and took steps to investigate any complaints, according to Matthew Clash-Drexler, an attorney with Bredhoff & Kaiser in Washington, D.C. Usually, employers show their preventative efforts by distributing their anti-harassment policy to all employees.
“What’s critical is the importance of conducting effective, impartial and, most importantly, defensible investigations,” said Barbara Johnson, an attorney with BLJohnson Law in Washington, D.C. When done right, an internal investigation “can be one of the best defenses in litigation” and can reduce settlement costs.
At the beginning of a witness interview, emphasize that the company does not permit retaliation and that you do not legally represent the witness. Avoid “investigation creep” by clearly understanding the scope of the matter, Johnson recommended.
“It is not an interrogation. It is not the place where you go in with a script of pre-written questions. Ask general, open-ended questions. Try to develop a rapport with the witness so they tell you stuff,” she said. “Avoid judgmental words or inflammatory words.”
You also need cultural competency to understand what your own biases might be as you conduct the investigation, she added.
Attorney-Client Privilege
After receiving a complaint of misconduct, an HR representative may conduct a workplace investigation, but sometimes the employer’s internal lawyer or external lawyer leads it. A union representative or an attorney representing the employee might be present.
The panelists discussed when attorney-client privilege exists and when it doesn’t. An attorney sometimes could be classified as working in a business or HR consulting capacity. If so, attorney-client privilege would not exist, and any discussions could be revealed during court proceedings.
“There’s no presumption just because a company uses an outside lawyer that the lawyer is acting in a legal capacity,” Clash-Drexler explained. “The Supreme Court is going to shed light on this in this term, and we should all pay attention to that.”
He was referring to a case called In re Grand Jury, which the court will hear on Jan. 9, 2023. That case will address whether a communication involving both legal and nonlegal advice is protected by attorney-client privilege, if obtaining or providing legal advice was one of the significant purposes behind the communication.
During workplace investigations, “you can never promise that something will be kept confidential. You can say, ‘I will take steps not to identify you by name,’ ” Johnson said. “Assume that your communications will be public.”
If you have shared certain information, such as a pay audit or diversity audit, with an outside or inside marketing team, then it’s probably not considered privileged, according to Anne Shaver, an attorney with Lieff, Cabraser, Heimann & Bernstein in San Francisco.
Be Responsive
Workplace investigations can build trust with staff if they’re done right, said Faisal Akhter, senior corporate counsel at Microsoft, based in Redmond, Wash., but those efforts can’t be effective if workers feel that making complaints will not lead to any changes or improvements. Promptly investigating complaints shows workers that you won’t dismiss or ignore problems.
“It’s important to have a culture where you encourage people to come forward with a complaint, and you will investigate it,” Johnson said.
The person who led the investigation should eventually report back to the employee who made the complaint, summarizing the results of the investigation. “Nobody will feel good about the process if they think it went into a box,” said Clash-Drexler.
Around three months or six months after an investigation, an HR representative should check in with the employee and ask if anything new has happened, so HR can be sure that retaliation isn’t taking place, Johnson said.
In order to prevent a problem from proliferating, you should have a system in place to track whether a person has been accused of misconduct more than once, Shaver recommended.