Conducting investigations of workplace misconduct is a critical function of management. While it is important for employers to promptly investigate instances of employee misconduct, a hasty, incomplete or improperly conducted investigation can lead to employee lawsuits for a variety of reasons including defamation, invasion of privacy, intentional infliction of emotional distress, false imprisonment, assault and battery and malicious prosecution (‘workplace torts’). Employers, however, can limit their exposure to such lawsuits by selecting the right investigator especially if the circumstances indicate that a termination of employment may be appropriate, and the employee involved might seek to contest the termination in an administrative or judicial forum.

In many circumstances an organization’s internal human resources staff can and should conduct investigations into routine allegations of workplace misconduct. However, some employers have come to regret that decision. These situations often arise during litigation when plaintiff’s counsel vigorously cross exams the company’s internal investigator regarding their competency to conduct an investigation, their subject matter expertise, thoroughness, or actual (or perceived) lack of impartiality. Human Resources personnel are often questioned about the timeliness of the investigation, as many of them have other day-to-day responsibilities resulting in their investigations often taking too long to complete or lacking sufficient detail.

A misstep in any of these areas can lead to a finding of bad faith which could place an employer in a worse position than if no investigation were conducted at all.

• Internal personnel lack the subject matter expertise to conduct the investigation, or the ability to complete it timely
• The complaining party has hired a lawyer, filed a lawsuit, or filed a complaint with a government agency (e.g., EEOC)
• Allegations of misconduct by high-level employees or corporate officers
• Sensitive or egregious complaints, i.e., sexual harassment, discrimination, retaliation, whistleblowing, theft/embezzlement, assault/battery or drug dealing
• Complaints by multiple employees about the same problem (e.g., several employees complaining about a particular supervisor harassing them)
• Allegations of widespread discrimination (e.g., the company treats women differently regarding pay or promotions, or it only hires younger workers)
• Challenges to an employer’s policies or practices as having a disparate impact on a protected category of employees (e.g., based on age, race, gender, etc.)
• Allegations involving the potential for significant financial or legal exposure
• Allegations involving the potential for adverse media publicity
• Any time an internal investigator’s experience or impartiality may be challenged.

Employers have a legal duty to investigate claims of sexual harassment, discrimination and retaliation. The Courts have held that an employer's investigation of a harassment complaint is not a gratuitous or optional undertaking; but under federal law, an employer's failure to investigate may allow a jury to impose liability on the employer. Employers can mitigate – or even avoid – liability for certain types of claims if they have conducted a good faith, effective and timely investigation. A major factor in this analysis is whether the investigation was conducted by an experienced, knowledgeable, and impartial workplace investigator.

• Is the Investigator experienced in conducting workplace investigations?
• Is the investigator a subject-matter expert?
• Is the investigator knowledgeable about employment law?
• Is the investigator able to complete the investigation in a timely manner?
• Is the investigator purely objective and neutral?
• Does the investigator have a good reputation?
• Would the investigator make a good witness?

Engaging the right investigator is an important decision, and Panico Law recognizes the enormous faith our clients place in our judgment and integrity. Investigations must not only pass muster before a judge or jury—they also must potentially withstand intense media and public scrutiny. Clients trust us to deliver superior-quality investigations that are credible and defensible.