What EPT Legal Offers
Some investigations are too sensitive to handle in house. We bring expertise and discretion to harassment, discrimination, whistleblower, False Claims Act and other complaints.
Our investigation team consists of attorneys licensed to practice in CA, D.C., CT, NJ, NY, and PA with decades of experience conducting investigations, as well as several Association of Workplace Investigators Certificate Holders (AWI-CH). Our firm is also licensed by New York State as a Private Investigator. Having worked at the nation’s top employment firms, as well as in law enforcement and unionized environments, we have the skills, experience, and demeanor to investigate those matters which are too sensitive or complex to handle internally.
We have conducted thousands of witness interviews in investigations involving discrimination, harassment, retaliation, and whistleblower complaints, for employers ranging from Fortune 500 companies to small family businesses, in health care, nonprofit, banking and finance, legal, and retail and hospitality industries.
What is an investigation?
A workplace investigation addresses an employee’s allegation that they experienced, witnessed, or otherwise know about misconduct in the workplace. An investigation is simply an inquiry to unearth facts. When there is a dispute over whether something happened, or a lack of clarity on what occurred, an investigation’s purpose is to determine what happened.
What complaints need to be investigated?
An employer has a legal obligation to investigate allegations of harassment, discrimination, and retaliation. In addition, an employer should (but is not obligated to) investigate allegations of violations of company policy, especially if the violation of the policy in question is considered by the Company a serious and potentially terminable offense.
Do I need to conduct an investigation?
Maybe not. If there is no dispute as to what occurred, you do not necessarily need to hire someone to figure that out. For example, if there is an allegation of misconduct and the subject admits to the conduct, there is nothing to “investigate.”
Similarly, if employees are complaining about each other, and none of the complaints rise to the level of discrimination, harassment, or violation of company policy, then another approach, such as a mediation or facilitated conversation through a trained HR or ER professional, mediator or ombudsperson, may be helpful in resolving the dispute.
When should I hire an external investigator as opposed to handling a matter internally?
This depends on many factors. If you are an owner of a company, or an employee relations, human resources professional, or other management representative, you may be able to handle this on your own, without hiring anyone outside the Company to assist you. If, for example, you are comfortable conducting witness interviews and document collection and review, feel you can conduct the inquiry in an unbiased way, and can do so promptly, this would be a good matter to handle internally.
However, if the accused is senior to you, there is the appearance of bias or conflict towards the accused or complainant, or if you do not want to be called as a witness to testify in a future litigation or proceeding about the investigation, it may be prudent to engage an external investigator.
The results of an investigation, usually a written report, will form the basis of your employment decisions, which may involve termination, or discipline. In a litigation, the report and its findings will serve as your legitimate business reason for any action you undertake, which is often a dispositive defense that an employer acted improperly. Therefore, using an unbiased trusted and experienced external can be useful because they will be the face of the investigation and will be held accountable for its findings.
What should I look for in hiring an external?
Make sure any external investigator is appropriately credentialed and licensed. Laws in some jurisdictions restrict who can conduct a workplace investigation. For example, both New York and California have statutes that require the professional conducting the investigation either be an attorney licensed in that particular jurisdiction, or a private investigator license holder issued by the Department of State. See N.Y. General Business Law §§ 70, 83; CA Private Investigator Act, Bus. & Prof. Code §§ 7512-7573.
In addition, be sure to ask whether they have conducted investigations involving the particular subject matter and whether they have received specialized training, such as training on trauma informed interviewing if applicable, such as in cases involving sexual assault.
Once I decide to move forward with an investigation what should I do next?
Whether you do it internally, or hire an external, make sure you are clear on the scope of the investigation—that is, what is the question the investigation will help answer. If hiring an external, make sure they provide the scope to you in writing prior to commencing work.
Do I need a report in every case?
This depends on what you would like to do with the investigation findings. Consult with your employment attorney to determine whether the findings should be memorialized. Usually it is a good idea to have a document indicating that an investigation occurred and at the very least, outlining the findings. If there are many allegations and the investigation findings will result in termination of employment, a more robust report may be helpful for your file. Similarly if the allegations appeared serious initially, but the investigator did not substantiate them and you decide discipline would be inappropriate, it would be helpful to have a report analyzing what the investigation revealed and the analysis that exonerated them.