The classic Yogi-ism―”It ain’t over ’til it’s over”―has
special significance for employment investigations. An investigation can lead
not only to discipline against a perpetrator but also to litigation by the
victim―or even the perpetrator―against the investigator or the employer. In
either of those unsavory situations, the investigator or HR manager may be
called on―often by subpoena and sometimes by being named as a defendant in the
lawsuit―to defend the investigative report and the process that led to it.
As part of that process, the employer is usually required to
produce all the records the investigator or the company generated or received
in connection with the investigation. At that point, the investigation is no
longer about the perpetrator or the victim. Instead, the investigator and the
HR manager who oversaw the investigation are the ones who are on trial.
Investigators, HR
managers can become targets in litigation
Litigation can ensue after an investigation in one of four
main ways. First, alleged victims in discrimination
or harassment cases who are unhappy with the investigative results often
initiate a lawsuit against the employer and the alleged perpetrator, claiming
that the employer didn’t properly remedy discrimination. The victim often will
also sue the perpetrator for harassment, assault, battery, and the like.
Second, in a workplace in which employees have “for cause”
protection against discipline,
employees who were disciplined or terminated
as a result of an investigation will often blame the investigator for a flawed
investigation, accuse the employer of setting up a biased investigation, or
allege that the employer’s decision was simply wrong because the investigator
erred in his conclusions. That can lead to an administrative appeal (such as
arbitration) and then to litigation.
Finally, perpetrators can initiate their own affirmative
lawsuits against the employer, alleging defamation, wrongful termination, or
violation of their privacy
rights. In that scenario, the investigator or HR manager is often the focus
of the attack.
What happens in the
ensuing litigation?
Plaintiffs’ attorneys routinely seek the disclosure of all files
and records the investigator gathered during the case, including notes,
draft reports, e-mails, and personal calendars. Records of any communications
between the employer and the investigator are usually fair game. That may
include communications between the investigator and the company’s legal counsel
or HR contact person. In the hands of an experienced litigator, an
investigative report is a fine vehicle for extensive cross-examination about
the investigator’s experience, neutrality, motives, competence, comprehensiveness,
record keeping, conduct during interviews, and overall investigative method.
But that’s only the beginning. Usually, the next step in
litigation is the deposition, in which the plaintiff’s lawyer has the
opportunity to grill the investigator or HR manager about the broadest
imaginable variety of issues pertinent to the investigation. The rules of
discovery (pretrial fact-finding) allow full exploration of the facts. If the
questions probe into areas that aren’t relevant to the lawsuit, the most your
lawyer can do is object―but the questions still must be answered. For example,
in one case in which my deposition was taken, a plaintiff’s attorney spent
about four hours asking me questions about my relationship with the employer,
suggesting bias toward the employer as well as lack of neutrality.
Some cases end up being resolved before trial, either by an
employer’s successful pretrial motion to dismiss the case or by settlement.
Absent such a resolution, however, the matter will go to trial (usually before
a jury), and the investigator or HR manager will be required to testify. It’s
now a trial in both senses of the word, with the plaintiff’s lawyer typically
grilling the investigator or HR manager on a broad range of issues, including
his qualifications, neutrality, selection, and independence, the process he
followed, the witnesses he interviewed, the documents he gathered, and his
contact with the employer during the investigation.
In litigation, the factual findings and analyses of the
investigative report are deeply probed. For example, a plaintiff’s attorney
will routinely seek disclosure of all drafts of the investigator’s report and
then probe for inconsistencies in the analysis, the employer’s review and edits
of the drafts, and the investigator’s internal deliberative process; flaws in the
investigative process; problematic use of noninvestigative personnel in
creation of the report; and similar potentially revelatory material.
In sum, litigation often entails a highly intrusive and
adversarial retracing of every step of the investigation process, including the
investigative report and findings, drafts of the report, and details about the
relationship between the investigator and the employer.
Attorney-client
privilege usually doesn’t shelter investigation
Do the same perils arise when the investigator is an
attorney? Many employers assume that the attorney-client privilege applies to
any communications when the investigator is a licensed attorney. Usually,
that’s an incorrect assumption because the attorney isn’t giving legal advice
in an investigative situation. Thus, the employer and its attorney investigator
need to assume that the privilege will not apply.
There’s one exception. Clients, inside counsel, and
sometimes investigators themselves use attorneys to get advice about proper investigative
processes, review documents the employer must generate as part of the
investigation, and review the draft of the investigative report. Assuming the
attorney-client privilege is properly maintained, those types of activities are
ordinarily privileged against disclosure.
Checklist to avoid
being the target
What preventive steps can an HR manager take in connection
with investigations? Here’s a checklist of precautions:
Perform due
diligence when selecting the investigator.
Take appropriate
steps to maintain confidentiality.
Ensure that the
investigator was afforded independence in conducting the investigation.
Be aware of
federal, state, and local laws pertaining to how investigations are conducted.
Always remember that any and all communications about the
case (written, oral, and electronic), whether they’re made within the
organization or with the investigator (including attorney investigators), are
likely subject to disclosure in litigation.
The investigator should keep the following points in mind:
Don’t take cases
outside your expertise.
Maintain your
independence as the investigator.
Keep copies of all
documents and statements gathered during the investigation.
Keep a log of all
contacts made during the investigation.
Abide by special
procedural requirements imposed by federal, state, and local law.
Be aware that any and all contact with the employer during
the investigation is fair game in litigation.
Bottom line
As long as there are lawsuits, there will always be a risk
that completed investigations won’t truly be “over” and that litigation will
lay bare the entire investigatory process. Employers and investigators can find
hope in another Yogi-ism, however: “You can observe a lot by watching.” Take
proper preventive steps to avoid the unwelcome encore of litigation
Source: HR
Hero Line
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