Workplace Investigations: Why Hire an Attorney Investigator?

The AWI & Workplace Investigations

I recently got back from a three-day conference of the Association of Workplace Investigators (AWI). AWI is going to change the way workplace investigations are done, and I suspect all for the better. Finally, there is a place where investigators can compare notes and develop methodologies that support investigative health. That is, workplace investigators can use AWI as a touch point to ensure their investigations are litigation ready in case their investigations are challenged in court. Employer-clients must do their part too.

Hiring the right person to conduct Workplace Investigations

Recently, I was hired to defend a company facing a charge of sexual harassment. When I reviewed the investigation that had been conducted, I was dismayed to see that the investigator had not interviewed the complaining witness. Apparently, the complaining witness had declined to be interviewed at the outset, and the investigator gave up without making any additional calls or efforts to reach the witness. She also failed to advise the client how severely this omission would limit her findings. An experienced investigator who is properly trained knows how difficult it is to come to any conclusion about a complaint without speaking to the person who started the ball rolling in the first place. I have had many complaining witnesses refuse to speak with me at first. However, all of them have eventually agreed to let me interview them when I persistently explained the importance of their role or offered some concession that would make them comfortable. Frankly, I felt that I really couldn't do my job without the complaining witness’ statement, and it was perfectly appropriate to be flexible (as well as tenacious) in pursuing a solution with them. As I said, in all cases, the complaining witness has eventually come around. A good investigator should not give up on getting this interview until she has tried everything possible to make it happen.

Proper Workplace Investigations

The sex harassment litigation I described above could have been prevented with a proper investigation. The client told me they hired this investigator because she was inexpensive, but the company ended up being penny-wise, pound foolish when it had to pay on the litigation. I urge employers everywhere to find an investigator who is either a certified private investigator or an attorney, as the California Business and Professions Code Section 7520 et seq requires, and ultimately someone who understands what’s at stake in workplace investigations.