Who should conduct the employee complaint investigation?

by on May 5, 2009 · 0 Comment POSTED IN: HR Info Center

HR Pros, lawyers, and outside experts offer different expert specializations during a employee complaint investigation

This article will examine having inside or outside lawyers or other experts conduct the employee complaint investigation. There are obvious plus and minuses to that. Lawyers can be scary, which may be helpful if your company is trying to make a statement with the employee complaint investigation. But lawyers can be sometimes not terribly employee-friendly and that may be a reason not to use them either internally or externally.

The general rule of thumb is it makes sense to bring in lawyers to an employee complaint investigation- particularly outside lawyers-wherever there’s a serious legal or negative publicity exposure or whenever there’s potential senior executive involvement in the allegations.

You probably need to build the record that you are bringing in, somebody neutral and objective to do the investigation if you want the investigation to have credibility. If it’s not done – if it’s done in-house, it may, in the eyes of the government or an agency or a court at a later date, lack independence and impartiality.

If you do not have a lawyer conduct the employee complaint investigation, you may want to – most likely will want to coordinate with lawyers about your strategy and about your tactics in carrying out the investigation. If you do carry out the investigation underneath the supervision of counsel, then you are able to claim the privilege, which you may want to do.

You do need to check to see if there are laws either federal or state that allow consent to have third parties come in and do investigations. For example, the Federal Fair Credit Reporting Act has been interpreted in the past to require an employee’s consent to have a third party investigate that employee.

Check with your lawyers in your jurisdiction to make sure how that law is interpreted and how any similar state laws are interpreted before you bring in outside people.

HR pros
Human Resources is another place to turn for people to do the employee complaint investigation. Just pick somebody appropriate. For example, if you have a gender claim where a woman is claiming that she was treated unfairly, you may want to have a woman investigator. If you have somebody of a given race, you may have more credibility with that individual if the investigator is of that race and so on.

The investigator will have more credibility eventually if they have a record of having been trained, having been through classes or other training. It’s always better to have somebody who’s done it before.

Other specialists and experts
Other internal resources that companies sometimes turn to are the internal auditors in larger entities and in compliance. There’s no right or wrong answer to who should do this. Bear in mind, you’re trying to create the appearance of a credible investigation. So depending on the subject matter, you may want to pick somebody from a department where they do have expertise in the subject matter.

Other external resources in employee complaint investigations we’ve talked about before are threat assessors, forensic accountants and the like who you may need to if not conduct the investigation at least be involved as a resource to inform how you do it.

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