As an employer, when should you hire an outside investigator to conduct a workplace investigation?

This is a question we often get from employers, and, in true lawyer fashion, the answer is, it depends. Many companies in today’s society have dedicated Human Resource departments that are responsible for dealing with a plethora of employee related issues including handling complaints. Whether or not the complaint is handled in-house (by Human Resource personnel) depends on the substance of the complaint and the parties involved.

For instance, if the complaint involves alleged sexual harassment between two entry level employees, it is likely something that can be handled in house. This provides various advantages including the institutional knowledge of the Human Resource department and the likely comfort the parties will have when they are interviewed by a friendly face. The downside, however, relates to the level of involvement Human Resources has in promoting, demoting, and/or terminating employees as the greater the involvement the more likely a conflict of interest exists.

On the other hand, if the complaint is made by a lower level employee against the owner/president of the company, the investigation would likely need to be conducted by an outside investigator to avoid the inference of impropriety. Even if the Human Resources member vows to be neutral and fair, the owner/president undoubtedly controls that individual’s employment which would cast a shadow over the conclusions reached. Similarly, if the investigator has a prior relationship with any potential witness, there is an inference that the witnesses’ statements may be given more weight than other witnesses. It is good to avoid these situations.

Current law requires a fair, impartial, and timely investigation if you are to use the outcome of the investigation as a defense to potential civil liability. Before conducting any investigation, keep the above in mind and ask yourself whether the proposed investigator is objectively neutral. If the answer is anything but yes, you should seriously think about hiring an outside investigator to conduct the investigation. Although more expensive than an in-house investigator, it could save you from a sham investigation and is much cheaper than defending a potential lawsuit.

For all of your workplace investigation needs, please contact the lawyers at Simas & Associates, Ltd. We specialize in workplace investigations and can guarantee a fair, timely, and impartial investigation.


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