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When to use an outside investigator

Eventually, most organizations will face a complaint of wrongdoing involving a company employee, or worse, a company leader. When such complaints arise, the company should respond with a prompt, thorough, and fair investigation. Typically, it’s not a question of whether the company should investigate, but who should conduct it.

Investigators are often responsible for interviewing witnesses, making findings, and recommending the appropriate response, including potential disciplinary action. However, juries may distrust internal investigations, particularly if the investigation seems incomplete or biased.

When issues of workplace misconduct arise, companies should be careful to provide a thorough and impartial investigation. While trained and experienced internal investigators can meet the company’s needs in many circumstances, each situation should be evaluated on a case-by-case basis.

Conflicts of interest: Consider whether undue influence, or simply the appearance thereof, could play a role in an internal investigation. That can be an issue when a CEO, board member, or other senior leader is the subject of an employee complaint.

If an internal employee is conducting the investigation, that person could be subject (or appear to be subject) to certain power dynamics, such as those involving compensation or advancement within the organization.

Potential for litigation: Consider an outside investigator if the employee has a lawyer, has filed a complaint with a state or federal agency, or seems likely to pursue litigation.

Statutory investigations: Allegations of sexual harassment as well as discrimination based on race, disability, gender, pregnancy, age and other protected classes can result in substantial legal liability. Involving legal counsel early on may help reduce exposure and mitigate future costs.

Multiple complaints: If the employer has received multiple complaints, including those involving different functions and/or an extended time period, it could suggest that larger, systemic issues are at play.

Sensitivity: If the nature of the concern involves sexual assault or workplace violence, consider hiring an outside investigator specializing in trauma situations.

Skills or workload: Consider hiring an outside investigator when the internal HR team has little experience conducting workplace investigations or simply does not have the capacity to conduct a prompt and thorough inquiry.

Employer brand: Sometimes the reason to hire an outside investigator is simply one of employee morale and perception. Bringing in third-party support gives the appearance that the organization takes employee complaints seriously. When an employee perceives their complaint is being handled fairly, they’re less likely to pursue litigation. Likewise, their peers may feel a greater sense of safety and overall respect for the organization.

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