When Should I Hire an Internal Investigator?

Tips for Massachusetts businesses when an employment law conflict arises

Conflict between employers and employees is common. The Equal Employment Opportunity Commission (EEOC) reports that more than 72,000 charges were filed with the agency in fiscal year (FY) 2019. Of course, this figure only represents a small percentage of total employment disputes. Many other issues are filed with state agencies or are resolved outside of formal legal proceedings. For businesses and organizations, a proactive approach to handling any employment law dispute can make an enormous difference.

“No matter where you're doing business in this country right now, the basic responsibility any employer has when they're faced with an allegation of discriminatory conduct, whether it's a race allegation, a sex harassment allegation, whether it's against a senior person or against a coworker, the basic responsibility is to figure out what happened and then to take the steps necessary to stop it from happening,” says Joshua M. Davis, who advises businesses and does investigations out of Goulston & Storrs in Boston. “Those steps can be as simple as warning people that they're misbehaving and telling them they need to stop, or as dramatic as terminating the CEO of the company. It completely depends on the underlying factual situation.”

Here are four tips for conducting an internal investigation of an employment conflict.

  1. Know the Benefits of a Proactive Internal Investigation

For employers in Massachusetts, the benefits of a proactive and independent internal investigation cannot be overstated. It could be the difference between quickly resolving a matter and ending up locked in protracted (costly) litigation. An investigation into an employment law conflict should be:

  • Timely
  • Comprehensive
  • Accurate
  • Confidential

If an employee is filing a frivolous or otherwise unfounded complaint, the results of an internal review will help a company build a strong defense. On the other hand, if the investigation reveals that the employee has good cause to file a claim, companies need to know that so that they can resolve the matter in an efficient, cost-effective manner.

  1. Understand the Risks of a Lack of an Investigation

It’s far riskier to not do an investigation at all. Managers are essentially flying blind in an employment law conflict and, should it proceed to a courtroom, it may show a lack of appropriate action. As an example, imagine that you are a top executive at a business with 60 total employees. A mid-level manager files an internal sexual harassment grievance against a supervisor in another department. What should you do? The answer depends entirely on what actually happened. You cannot comply with your obligations under Commonwealth law and protect the interests of the company unless you understand the matter.

Typically, the process starts with an employee complaint and the employer faces a decision: Can we handle this internally, through HR, or do we need outside counsel?

“When you hear the story, if the allegation is, ‘I feel somewhat slighted because so-and-so got this,’ that's probably something a business with enough staff can figure out through a carefully managed internal interview process to get to the answer,” Davis says. “But if it's more, ‘Here's a series of decisions this supervisor has made, and it appears to me that in each of the decisions either men or white people have been advantaged and other folks have been disadvantaged,’ the scope of the inquiry already starts to seem broad and is something a lawyer should look into.”

  1. Remember an Investigation is About a Fact-Finding

One of the biggest mistakes that employers make is trying to influence the outcome of an internal investigation. Remember, an internal investigation is fundamentally about fact-finding. Decision-makers at the company need an independent, objective account of exactly what happened so they can find the most effective way to address the matter. A sloppy or biased internal investigation will put a company on the wrong path—potentially exposing it to significant legal liability.

A dependent investigation, as Davis calls it, gives the employer more say and more control as facts are uncovered, but can also looks much shadier and suspect. “And claims of inadequate investigations are burgeoning these days,” he adds. A truly independent one looks much better, but there’s a downside.

“If I'm hired to do an independent investigation, I get told what the complaint is, and then I, as the investigator, develop my own approach to the problem, interview the people I think I need to interview, look at the documents I think I need to look at, and then come to a conclusion about what happened, and report that conclusion to my client. The client isn't involved in the process, and the client has no ability to respond as events dictate. That, from my perspective, is the gold standard,” Davis says. “The one downside is you're stuck with whatever the investigation finds. There almost always is some sort of report, and the investigator's work is almost always discoverable.”

  1. Finding the Right Investigator in Massachusetts

Selecting and hiring an internal investigator is a complicated task—particularly for small and mid-sized employers that are new to the process. The good news: “There's a whole universe of independent investigators who are specialized—say, in Title IX—and you can hire them on a kind of case-by-case basis to look at a problem,” Davis says. “Almost every law firm with a meaningful management-side employment practice has lawyers who are trained investigators or who are experienced enough so you would trust them with a serious problem.”

If you have any questions or concerns about internal investigations, contact a Massachusetts employment & labor attorney for guidance and support. An experienced lawyer can review your concerns and help you devise a strategy focused on finding the best path forward. 

“In any workplace situation, there are people at work who care about the people involved,” Davis adds. “So one of the benefits of an investigation is it can give the workplace confidence that whatever the outcome was, it was fair to the people involved. There's something comforting in knowing that your employer is serious enough about the people who it employs to take meaningfully its obligation to figure out what's true before taking action that can affect somebody's life.”

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