Why Use a Neutral Third-Party Investigator?

Determining who should investigate alleged workplace misconduct is one of the most important decisions an employer can face.  An employer generally must decide whether to utilize its own internal human resource personnel to conduct the investigation or to retain a neutral, independent third party with the requisite workplace investigation experience to do so.  How the employer resolves this question has the potential to have far-reaching consequences.

Factors to Consider When Selecting a Workplace Investigator

In determining who should conduct a workplace investigation, an employer must consider:

  • The nature and complexity of the conduct alleged
  • The position of the person(s) accused, and
  • Whether there are employees within the organization who:

* Have the necessary level of investigation training and experience

* Have the time available to commit to a thorough investigative process

* Have the resources and skill to handle the issue, and

* Are free from any actual or perceived conflicts of interest or the perception of bias generally.

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In some cases, if the employer has a human resource professional on staff who has experience conducting workplace investigations, it may make sense for the employer to have the investigation conducted internally, with regular guidance from experienced employment law counsel along the way.  Oftentimes, however, internal human resources personnel have an actual or perceived conflict of interest which has the potential to seriously undermine the integrity of the investigation.  In fact, questions of bias will almost always be raised and linger when using an internal investigator.

Moreover, as a practical matter, human resources personnel are often extremely busy and “wear many hats” in their particular organization.  As a result, such individuals are typically not in a position to “drop everything” they are working on (or planned to be working on) and devote nearly all of their time thereafter to conducting the investigation.

After all, the investigation process itself is typically very labor intenstive and time consuming.  For example, investigations frequently require interviewing numerous different individuals (including some of them on more than one occasion), gathering and analyzing other available evidence, assessing the credibility of witnesses and the other evidence, making written findings of fact and determinations about violations of the organization’s policies, and, in some cases, making recommendations about remedial measures, including possible disciplinary action.  As a result, it can often take weeks or, in some cases, even months for an investigation to be completed.

Accordingly, employers can almost never go wrong by retaining a knowledgeable and experienced professional from outside the employer’s organization to conduct the investigation.  Doing so can minimize both the perception of bias and the risk of an actual or perceived conflict of interest on the part of an internal investigator.

In fact, there are often circumstances where it is not only preferred but necessary to retain an outside, independent fact-finder to conduct such investigations.  This would, include for example:

  • If the alleged misconduct relates to very sensitive matters which potentially will garner media attention
  • If the alleged misconduct involves high level management employees (whether or not the internal investigator reports directly to the individual(s) in question)
  • The employer does not have anyone on staff who has the experience or is otherwise qualified to perform workplace investigations, and
  • Those internal personnel who might otherwise logically conduct the investigation either do not have the time to devote to the investigation or are not free from conflicts of interest or the perception of bias

Moreover, investigations conducted by an individual from outside an employer’s organization often are able to conduct a more effective investigation because employees feel less constrained discussing workplace issues with such individuals.

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To speak to an Glendale Workplace Investigation Law Attorney, contact us either by email or by telephone at (310) 426-2650.