Workplace Investigations:

Independent Judgment When It’s Most Imperative.

We are often contacted by the employer’s attorney—either an attorney in a private law firm or in the organization’s Office of General Counsel—who has evaluated a situation and, based on that assessment, has recommended to their client that an outside investigator be retained to conduct an internal investigation.
       Retaining an outside investigator under these circumstances avoids common problems that can arise if the same attorney conducts an internal investigation and is called upon to represent the client in a continuing dispute with the employee. Where, for instance, the employer’s regular counsel conducts the investigation of an internal matter, a serious conflict of interest may arise, if that same counsel is then eventually called upon to represent the client in litigation of the same matter under investigation. Retaining an outside investigator prevents this type of conflict of interest from developing.  

Because internal investigations can have serious ramifications for employers, selecting the right investigator is critical. The Weinstein Firm has been brought in as outside investigators in the most sensitive of circumstances, those calling for highly skilled, independent professionals whose judgment and integrity you trust implicitly.

Employers conduct investigations to find what actually occurred in an incident and/or to verify the facts relating to allegations. Oftentimes this is not an easy task because the investigators must evaluate documentation, ascertain the credibility of witnesses, and connect related facts to either corroborate or refute evidence.

Clients call upon us when they need to truly understand what is happening or what has happened in their workplace—and whether polices or employment laws have been violated. We appreciate the risks that go along with employee complaints or potential compliance violations. We know how to get to the bottom of these situations and evaluate evidence so that you can make effective decisions.

Our clients are proud of their decision to retain The Weinstein Firm and appreciate the importance of our unquestionable reputation for excellence in all the work we undertake. Particularly where both the conduct and outcome of an investigation really matter to the continuing success and reputation of the organization, our clients know they can count on us to appreciate the risks and exercise the utmost discretion and ethical decision-making at all times.

Employers have looked to The Weinstein Firm to serve as outside investigators for the most difficult and challenging of circumstances. Oftentimes, the employer lacks the requisite skills, experience or time to conduct a highly complex internal investigation or the person accused of misconduct is highly placed in the organization, a high-profile or prominent individual or a human resources or legal department professional. The firm has also been retained where the employer has, for various reasons, been unsuccessful in its own attempt to conduct an appropriate investigation or where the organizational dynamics are such that the complaint triggering the investigation is likely to have wide impact internally.

Calling the outside investigator as a witness at trial.

When necessary, our investigators are available to assist in litigation by serving as a witness to testify about the investigation at trial. Under these circumstances, the qualifications of the investigator and the quality of the investigation likely will become especially important to the employer’s defense of its action.

The employee’s attorney may cross examine the outside investigator and subject the investigation to scrutiny. As a result, everything about the investigation from the credentials of the outside investigator to the investigation plan, interviews conducted, documents and information reviewed and conclusions arrived at—may be carefully examined in front of a judge and jury.

The firm’s founder, Deborah Weinstein, has been retained as an expert in employment litigation in federal and state courts to evaluate the conduct of the defendant employer’s investigation of the misconduct at issue. As a result, we realize that our investigation work may be subjected to heightened scrutiny where resolution of a dispute requires litigation.

Doing it right and doing right.

There are many reasons why an employer would be obligated to conduct an internal investigation. The concept of a workplace investigation likely stretches back to the earliest days of civilization. Employers have an important interest in ensuring that their employees are performing at optimum levels, adhering to organizational standards and procedures, and, especially, not engaging in conduct that infringes on another employee’s civil rights or other protected rights.

The most common reason that employers are compelled to conduct an investigation is because an employee has lodged a complaint alleging discrimination, harassment or retaliation. In these circumstances, employers are expected to conduct a “prompt, thorough, and impartial investigation.” EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC No. 915.002, 6/18/99. See also 29 C.F.R. §1604.11.

Indeed, the efficacy of any investigation is dependent upon the care in planning and execution of the investigation itself. Investigations are not ad hoc efforts that are conducted in a casual manner. As serious ramifications for employers and employees may result from investigations, organizations have a responsibility to pursue investigations in a responsible manner.

“We are most often retained as outside investigators on the recommendation of other attorneys. Our referral sources tell us that they possess the highest level of comfort with regard to our interactions with their clients. Plus, as a small, boutique law firm, we offer a layer of independence and impartiality.”
—Deborah Weinstein, Founder

Disclaimer
© 2015 The Weinstein Firm, LLC. d/b/a The Weinstein Firm