Advantages of Retaining an Employment Law Attorney Experienced in Conducting Workplace Investigations

When retaining an independent third party investigator to conduct a workplace investigation, employers must choose between an employment law attorney or a private investigator.  (Human resource consultants are prohibited by California law from conducting workplace investigations, as explained below).  Because the quality of the investigation will impact whether your organization is able to restore employee morale and productivity, to avoid litigation, or, if necessary, to mount an effective litigation defense, selecting an investigator is a decision of paramount importance.

If your organization has concluded a particular situation warrants the investment of time and resources to retain an unbiased external investigator, your organization should also understand the legal and practical reasons as well as the strategic advantages for hiring an employment lawyer experienced in conducting workplace investigations.

Employment Law Attorneys Typically Have Superior Legal Knowledge

Most private investigators do not have sufficient experience or legal knowledge to conduct a thorough and effective workplace investigation that will enable employers to restore employee morale and productivity and avoid legal pitfalls that can dramatically increase an employer’s risk of liability.  An experienced employment law attorney, on the other hand, will be much more likely to have a strong understanding of the substantive law governing the issues being investigated or, if necessary, the training and ability to quickly research, analyze and understand any such issues.

Having this knowledge and ability both at the outset and throughout an investigation enables the investigator to better determine what information is relevant and, in turn, control the investigation’s costs.  Likewise, this substantive legal knowledge enables the investigator to more easily and effectively determine whether particular conduct constitutes a violation of an employer’s policies or applicable law.

At the same time, a seasoned employment lawyer will be more likely to understand the applicable law governing an employer’s legal obligations not only with regard to the sufficiency of a workplace investigation but also with regard to other important issues implicated by workplace investigations (e.g., privacy issues, preserving the attorney-client privilege, confidentiality, retaliation, documentation and evidentiary issues, etc.).  In addition, an employment lawyer experienced in conducting workplace investigations will typically be far better able to identify and effectively address important issues (both legal and practical) that might otherwise be overlooked as insignificant.

Failing to understand the full range of an employer’s legal obligations or to spot and address important issues during an investigation not only has the potential to undermine an otherwise effective investigation but also can unnecessarily expose employers to significant additional liability.

Retaining an Attorney Allows You to Provisionally Protect the Investigation from Discovery by Invoking the Attorney-Client Privilege

Retaining a licensed attorney to conduct a workplace investigation rather than a private investigator also provides employers with another significant advantage:  the option and flexibility to provisionally treat the investigation as being subject to (and, therefore, protected from disclosure by) the attorney-client and attorney work product privileges. Depending on the outcome of the investigation and other factors, these “privileges” can later be waived in the event of litigation to prove the employer conducted a prompt, good faith and thorough investigation.

Extensive Litigation Experience If Called Upon to Testify

Sometimes, despite an employer’s best efforts, litigation ensues and the findings and/or sufficiency of the investigation are put in issue.  Given the investment of time and resources involved in the investigation, employers want to be confident that the investigator they are retaining has the experience and demeanor to handle the rigors associated with a deposition or trial.  An employment law attorney with employment litigation experience will be able to meet those challenges.

Only Certain Licensed Professionals Are Legally Permitted to Conduct Workplace Investigations in California

As noted above, under California law, only licensed attorneys and licensed private investigators are permitted to conduct workplace investigations.  Human resources consultants, on the other hand, are not.  Accordingly, while an HR consultant might try to persuade an employer that it can conduct a lower cost investigation, the last thing your organization wants is for the validity of its investigation – as well as any corresponding corrective measures – to be challenged for failing to comply with California law.

 

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For these reasons, an experienced employment law attorney offers significant advantages over a licensed private investigator and is frequently the best choice for conducting a thorough and effective investigation of alleged workplace misconduct.

To learn more about how we can help your organization respond to issues of alleged workplace misconduct, please contact one of our Riverside Workplace Investigation Attorneys either by email or by telephone at (310) 426-2650.