Workplace Investigations: Impartiality and Independence

Summary:

We believe that workplace investigations done by attorneys for their clients are not impartial and not independent for three reasons;

1. Attorneys are bound by ethical considerations and the attorney-client privilege, which favors their client employers.
2. Investigators have a financial incentive to structure the investigation in favor of their clients to ensure repeat business.
3. Investigators often do not prevent employers from using the investigation against the complainant. This is because authorities recognize that attorney-client-privileged investigations should be structured to benefit the employer, and investigators should defer to their client’s wishes.

To become independent, attorneys need to allow more transparency in their investigations.

Attorney-Client Privilege

In a legal case, an employee asked to see the investigation report from a workplace investigator hired by their employer. The employee argued that because the investigator was not acting as a lawyer but as a fact finder, the report should not be protected by the attorney-client privilege. The court disagreed and said that the privilege did apply to these investigations. However, the employer could waive this privilege if they wanted to use the investigation report to defend against the employee’s claims. Even if the employer chose to rely on the report, they could still argue that some parts of it should remain private. If the investigation supports the employee’s claims, the employer can use attorney-client privilege to keep the report hidden from the employee. However, the investigator must still inform the employer of any legal issues that come up during the investigation, even if they are outside the scope of the original complaint. The investigator cannot share this information with the employee due to attorney-client privilege. If the employer instructs the investigator to prepare a report that debunks the employee’s claims but also includes evidence of discrimination, the investigator would be acting unethically.

Repeat Player Bias

In workplace investigations, investigators may have a tendency to favor the employer to get more work. This can make the investigation unfair. Investigators should be neutral, but they may be influenced by the fact that they make money from the investigation and from future work with the employer. If they are too impartial, they may not get more work in the future. This creates a conflict of interest that can make the investigation biased in favor of the employer. This is a problem because it is essential to be impartial to have a fair investigation.

Weaponization

In the real world, corporations sometimes misuse attorney-client investigations to protect their interests, even if it harms their employees. The Washington Commanders hired a company called Wilkinson Walsh to investigate allegations of harassment. However, the owner of the Commanders, Daniel Snyder, interfered with the investigation to protect himself. He tried to silence witnesses, influence the investigation, and even sued former employees. Ultimately, he falsely claimed that the investigation had cleared him of wrongdoing but kept the real findings secret.

Preconditioning or confirmation bias is when evidence is interpreted in a way that supports existing beliefs or a hypothesis. This can lead to critical evidence being ignored or explained away. Workplace investigators should limit their contact with clients throughout the investigation to prevent this. However, many investigators do not follow this recommendation, and clients and their lawyers may use this access to influence the investigation in their favor. In some cases, threats may be made against the alleged harasser, but these may be hidden in attorney-client communications, so the employee may not be aware of them.

Attorney-client privilege is often used to control workplace investigations and hide legal wrongdoing. Sometimes, attorney investigators won’t talk to employees with important information if their client doesn’t want them interviewed. In one case, a law firm investigating sexual harassment at Fox News refused to interview female employees who Roger Ailes harassed. In another case, an investigation into sexual harassment at CBS was overseen by people close to the accused and the company’s attorney, which raises concerns about bias.

Employers use confidential investigations to control and influence the outcomes and to find damaging information to discredit those who make complaints. This is a common tactic to minimize the impact of misconduct allegations. Unfortunately, these tactics are not limited to private investigators, employees are often targeted with personal and intrusive questioning. Defense lawyers prepare these questions and would not be allowed in a court of law.

Employers often hide important information from employees during investigations, making it difficult for employees to substantiate any claims against them. The employer’s access to investigation materials exacerbates this issue, as they may learn of evidence that could hurt their case and engage in settlement discussions before the employee learns of it. Employees need to have full access to an employer’s investigation to value their case better. This lack of access puts employers and employees on an uneven playing field.

Employers sometimes use “neutral” investigations against employees in legal disputes. The same investigator who claimed to be impartial may later switch sides and help the employer. In some cases, the investigator may even share information with the employer’s lawyer that was supposed to be confidential. This can be incredibly unfair when the employer gets three chances to investigate while the employee gets none. This kind of behavior is not okay, and California should follow federal courts and allow plaintiffs to investigate the defendant’s investigation.

The employment law attorneys of Helmer Friedman LLP have worked on many workplace investigations and found that investigators usually don’t record interviews. This is a problem because recorded interviews have many benefits, such as capturing what witnesses say accurately and revealing any biases the investigator may have. The reason for not recording interviews is that employers don’t want the investigation preserved for the jury, judge, and arbitrator to view the evidence themselves. Instead, employers want the evidence to be filtered through the lens of their attorney investigator.

To be an impartial lawyer, workplace investigators must treat everyone fairly and not be influenced by their clients. At the start of each investigation, they should get a written agreement from their clients to waive attorney-client privilege, include the complainant’s lawyer in all communications, videotape interviews, prepare a written report, and provide the report and all related documents at the end. These steps can help lawyers conduct impartial investigations and bring transparency.

Excerpted from Andrew H. Friedman and Courtney Abrams, Attorney Workplace Investigations: Neither Impartial Nor Independent, Cal. Lab. & Emp. L. R. Vol. 37 No. 2 (March 2023) – view source material here – https://www.helmerfriedman.com/docs/Workplace-Investigations-Impartial-Independent-CLELR.pdf