An employee who raises a complaint is often concerned that the company will retaliate against them. The reality is that most human resources managers and other direction don’t treat employees differently when concerns are aired about the company or individual supervisors. And a complainant who has been overlooked for a jury contemplating disciplinary action that seems to come on the heels of a complaint, may see things very differently, even if the business actions or inaction is totally irrelevant to the criticism. Employees who participate in investigations frequently say the internal investigator now knows too much and”sees me as a complainer.” This inner investigator will know about the understanding of retaliation with every interaction with these participants and other people who might hear about the complaint no matter directions to keep the matter confidential. Even if the internal investigator really can separate out exactly what had been said in about the criticism, and function going forward, participants will likely never be convinced that the internal investigator can”unhear” what had been heard during the analysis. Conversely, using an outside investigator allows the enterprise to run a complete investigation while the organization and employees continue without perceptions about the procedure weighing down the worker population.

Organizations have regularly relied on in-house and external counsel to handle these investigations, particularly when the accused is a high level employee or they don’t have the internal resources available to conduct an impartial investigation. Many lawyers choose not to run employee relations diagnoses just because the risk of turning into a reality witness in trial is elevated once the investigation is utilized as part of their defense. When an investigation is performed by in-house or outside counsel, however, a conflict may arise should litigation ensue. If the organization wants to use that investigation to show it did the ideal thing, it may have to waive the attorney-client privilege with respect to strategic conversations related to the investigation. Utilizing an external investigator gives a bright line barrier separating those sensitive discussions from the investigative process, so the privilege may still be preserved. When an investigation is provided as evidence that a employer responded appropriately into your complaint, the investigator may be called as a witness at trial. If this investigator is also counsel for the organization, representation on such issue will probably be problematic. Our seasoned investigators are independent of the business which means there are no conflicts in terms of representation. EPS investigators are also well prepared for the eventuality of trial or deposition testimony. And once the investigator is called, the employer will feel assured that they have conducted many similar investigations and have found in some cases that policy violations occurred and, from others, that violations of coverage did not. An outside investigator doesn’t represent the company and their bills will be limited to what they heard in the investigation and nothing else.