4 reasons general counsels should order, not conduct, workplace investigations

When a workplace complaint arises, many business leaders first turn to their general counsel. Attorneys who haven’t handled workplace investigations before may be tempted to lead the investigation on their own. They know the people, they’re familiar with the context, and they understand what’s at stake for their client. Keep it “in the family” and get it done quickly, right? But general counsels who have been around the employment law block know that conducting, leading or directing an investigation internally can lead to unwanted complications and adverse implications down the road.

The team of experienced attorney workplace investigators at Employers Council are on call to conduct unbiased, fair and thorough investigations — empowering general counsel to remain the organization’s advisor and advocate. Here are four reasons general counsel should have Employers Council on speed dial for workplace complaints: 

You can avoid accusations of compromise or impartiality

Even if conducted perfectly, an internal workplace investigation is open to accusations of subjectivity from parties and witnesses during the investigation and possible challenges in court afterward. General counsel can instead order a third-party investigation, guaranteeing fairness, assuring participants the findings will be objective, and safeguarding against future allegations as much as possible. 

During an investigation run by Employers Council, general counsel’s role is very limited. They order the investigation and provide the external investigator with the details of the complaint, contact information for parties and witnesses, relevant records, and necessary access. Then general counsel stays on their side of the “wall,” allowing the investigation to proceed without interference and remaining available to advise their client. 

You can set up a structure to best allow for a later privilege argument

“Will the investigation report be considered privileged?” That’s one of the most common questions general counsel asks Employers Council’s workplace investigators. Employers Council can’t predict or promise what a judge might rule when it comes to privilege — and privilege might not be to the employers’ advantage in every case.  But if the in-house counsel orders the investigation, Employers Council is impartially fact-finding to aid that attorney in providing legal advice to their client. An argument for privilege can be made if the complaint goes to court. 

You are free to advise on legal issues during the investigation

If general counsel conducts or directs a workplace investigation, it may be a conflict for that attorney to advise their client on workplace management or next steps after the investigation. The employer may need to hire another attorney to handle those questions in order to maintain objectivity. 

What kinds of issues do employers need help determining during an investigation?

• Whether to allow requested leave, put someone on leave, or other workplace management issues
• Whether or not to compel an employee to participate. This may be impacted by organizational policy, and there may be risks on either side of this issue.
• How much information should employers share during and after an investigation? Parties may have a right to know the findings of an investigation, but witnesses typically don’t. What is best for all involved?

Leaving the investigation to external attorneys frees general counsel to advise on these issues. 

You can advise your organization on how to interpret the investigation’s findings — and represent them well in court

Arguably, the most important job of general counsel is to help their clients know what to do based on the investigation report. Investigation reports don’t include legal judgments; they simply contain factual conclusions, and most employers rely on general counsel to help them sort through their options afterward. If general counsel both conducts and interprets the investigation, the employer’s actions can be harder to defend as objective in court. 

In addition, if general counsel is called to testify as an investigator in court, the employer will need to hire other counsel to represent them instead. Contracting with an experienced and fair third-party investigator, like those at Employers Council, allows general counsel to be there when organizations most need them.

Are you currently weighing how to proceed with a workplace complaint? Talk to our team of experienced investigators.