When to Use an Outside Investigator & Choosing an Outside Investigator

When to Use an Outside Investigator & Choosing an Outside Investigator

By Gene R. Thornton, Esq.  *

Whenever an employer receives a complaint of sexual harassment or other workplace misconduct, a prompt, thorough, and fair investigation should be conducted.  Following the investigation, appropriate remedial measures should be implemented.  That much is basic employment law and human resource management.  But who should perform the investigation?  Should it be done by the employer’s HR manager, office manager or safety officer, if any?  Should it be done by the accused employee’s supervisor?  Or should an outside investigator be retained and, if so, what qualifications should be sought in the outside investigator.

Simple Investigations—Outside Investigator Probably Not Needed

If the allegations concern performance issues, employee relations, then the employer can probably do without an outside investigator.  It will probably be fairly easy to determine what more likely than not occurred.  Few witnesses will need to be interviewed.  It is recommended that the allegations be investigated by a person other than the supervisor of the accused due to the possibility of bias entering into the investigation and the fact that the supervisor may actually be a fact witness. 

Statutory Investigations—Outside Investigator Likely Needed

Allegations of sexual harassment—be they hostile environment or quid pro quo—implicate state and federal anti-discrimination laws, and can result in serious liability on the part of the alleged harasser and the harasser’s employer.  Discrimination based on race, color, religion, national origin, disability, gender, sexual orientation, pregnancy, and age can similarly result in substantial legal liability.  When the allegations are of this type, an employer should probably hire an outside investigator.

Complex or High-Risk Investigations—Outside Investigator Definitely Needed

If allegations of workplace misconduct are made against a C-suite or high-level individual, the employer will definitely want to bring in an outside investigator.  Also, the nature of some allegations may require specialized experience such as training in conducting workplace violence or accident investigations.  If the situation is likely to attract the attention of the media, then fending off damaging publicity is best managed by retaining an outside investigator.  If litigation is imminent, then outside investigatory help should be enlisted.  If the alleged damages are severe, then the employer should definitely invest in an outside investigator.

Qualifications of Outside Investigators

Some outside human resources consultants conduct workplace investigations, and will typically charge fees lower than those of attorneys or private investigators.  However, in Colorado and most other states, it is illegal for a person to conduct a workplace investigation for an employer other than their own employer unless they are either an attorney or a licensed private investigator.  It could be disastrous to hire an HR consultant who is neither licensed as an attorney or private investigator because the consultant would be subject to withering cross-examination for not actually meeting the necessary qualifications to do outside investigations established by state law.  An HR consultant not licensed as an attorney or private investigator would likely not qualify as an expert witness, and therefore would not be permitted to testify as to opinions, but rather be limited to testifying solely about facts.  Thus, a mere consultant could be prohibited from testifying on the critical issue, which is:  exactly what, in the educated and informed opinion of the investigator, more likely than not occurred.  Accordingly, only licensed attorneys and licensed private investigators should be retained in Colorado and most states to perform workplace investigations.

Ten Very Good Reasons to Hire a Qualified Outside Investigator

There are ten very good reasons to hire a qualified outside investigator:  (1)  Outside investigators will likely have training in conducting workplace investigations and possibly a certification.  (2)  Outside investigators will likely have greater experience in conducting workplace investigations.  (3)  The attorney-client privilege and work product doctrine may protect disclosure of the results of the investigation where a licensed attorney is used.  (4)  There will likely be less actual bias and appearance of bias with an outside investigator.  (5)  Licensed attorneys and private investigators will be subject to professional ethical standards.  (6)  The investigator’s conclusions will be more defensible if an outside investigator is used instead of an in-house investigator.  (7)  An outside investigator will likely have more experience testifying than an in-house investigator.  (8)  An outside investigation will likely have more credibility to the complainant, respondent, witnesses, and jurors than an inside investigator.  (9)  There will be less interference with the regular duties of the employer’s staff.  (10)  The chosen investigator will not suffer from the “kill-the-messenger” syndrome that can be career-ending for an in-house investigator. 

*  Gene R. Thornton is an employment law attorney with over 30 years of experience representing both employers and employees in sexual harassment claims and lawsuits.  He is the principal of Thornton Workplace Investigations, LLC.  He has conducted over 60 investigations of various types, and is a Certificate Holder from the Association of Workplace Investigators (AWI).  He can be contacted for workplace investigations at 719-761-5450, www.ThorntonWorkplaceInvestigations.com. 

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