Employers have an affirmative legal duty to conduct a prompt, impartial, and thorough investigation into employee complaints involving harassment, discrimination, or retaliation. In California, employers are also required to investigate alleged incidents or threats of violence in the workplace. One of the first decisions an employer must make when receiving a complaint is whether to use an internal investigator within the human resources (HR) department or hire an external investigator. The choice depends largely on the nature of the complaint and the experience and qualifications of the internal investigators.
Internal vs. External Investigators
Using an internal investigator can be more practical, efficient, and cost-effective. Internal investigators are usually more familiar with the organization’s policies, structure, culture, and information systems, allowing them to gather evidence efficiently. However, internal HR personnel may be seen as lacking impartiality because they are embedded in the organization and may be perceived as lacking objectivity due to unconscious biases in favor of the existing culture. Additionally, internal HR personnel may be seen as biased due to their existing relationships with the individuals or witnesses involved in the complaint which could undermine the investigation’s credibility.
Improperly handled investigations, or those perceived as biased or lacking good faith, can lead to significant legal liability. As such, there are certain situations where it may be prudent to retain an external investigator.
When to Hire an External Investigator
Consider hiring an external investigator in the following situations:
1. Allegations Involving High-Level Executives or Officers
When the complaint involves allegations against senior leaders, HR’s impartiality may be questioned due to the supervisory role executives often have over the HR department. To avoid any appearance of bias, it’s best to hire an external investigator to ensure impartiality.
2. Allegations of Bias Against the HR Department
Impartiality is critical in any investigation. If there’s a concern about bias or conflicts of interest within the HR department, any findings from such an investigation may be challenged. To mitigate risks and demonstrate a fair process, employers should hire an external investigator when there’s a real or perceived conflict of interest.
3. Lack of Capacity or Qualified Personnel in HR
If the HR department lacks the capacity or expertise to conduct a thorough investigation, it may fail to interview key witnesses, fail to gather crucial evidence, or arrive at conclusions that lack support or reasoning – all of which undermine the integrity of the process. In cases where HR is not equipped to handle the investigation, employers should consider hiring a qualified external investigator, especially if the complaint involves significant legal risks.
In California, external investigators must be licensed attorneys or private investigators. Investigations led by outside attorneys may also be protected by attorney-client privilege.
4. The Complainant Is Represented by an Attorney or Has Filed a Formal Complaint
If the complainant has an attorney or has filed a lawsuit or complaint with the Equal Employment Opportunity Commission (EEOC) or California’s Civil Rights Department, the risk of legal liability is high. In these situations, hiring an experienced external investigator is essential to ensure the investigation is seen as impartial and conducted in good faith. This can potentially help limit the employer’s liability in the ensuing litigation.
5. Repeated or Multiple Complaints Involving Systemic Issues
When there are multiple complaints suggesting a pattern of misconduct (e.g., harassment or discrimination) or when policies disparately impact a certain group of employees, it may indicate a broader, systemic issue. Using an external investigator can help ensure that the investigation is perceived as impartial and fair. It also signals to employees that their concerns are taken seriously, reducing the likelihood of litigation.
Conclusion
Employers should consider hiring an external investigator when there’s a risk that an internal investigation may be biased, incomplete, or not conducted with the necessary level of expertise. Taking these steps not only helps mitigate legal risk but also fosters a fair and transparent process for employees.
For assistance with workplace investigations, please contact Christine at christine@leelaborlaw.com.