Sexual Harassment Workplace Investigations: A Worthwhile Investment
Employers routinely encounter workplace issues that can’t be properly evaluated without uncovering additional facts. Those situations can include everything from an employee complaining of sexual harassment to suspicion that an employee has embezzled funds. Such problems raise a natural question: What’s the best way to get to the bottom of what happened?
Because of the complexity of workplace computer systems and other high-tech devices as well as the seriousness and potential expense of lawsuits by employees, companies increasingly rely on both internal and external investigations to collect facts, preserve the record, and provide an objective game plan. The purpose of this article is to explain the different types of investigations and when each is appropriate, outline the steps the investigations can take, and review the costs and benefits associated with a proper investigation. The article also addresses the question of when you should conduct an investigation yourself or seek outside help.
When is an investigation a good idea?
When faced with choosing whether to conduct an investigation, a business will often question whether the expense involved is worth the dividends that will be supplied. Investigations can be expensive, whether conducted by an investigative firm or an attorney. Cost will depend on the duration and depth of the investigation. A properly conducted investigation, however, can result in benefits to a corporation well in excess of the cost. The benefits often include gaining information gathered through interviews and witness statements, seizing evidence, and otherwise preparing to defend against civil litigation in the future.
You may also want to seize evidence, conduct witness interviews, and prepare for future litigation on your part. Proper treatment of evidence is crucial, and without proper preservation, you may lose it or call its credibility into question. A properly conducted investigation will always include a report that documents and memorializes the evidence seized in the investigation.
Investigations are conducted for many different reasons, each with specific benefits. For example, in response to a sexual harassment claim, an independent investigation conducted by an impartial outside investigator may be appropriate. Such an investigation can identify certain important facts that are often withheld from an employer by reluctant employees. An additional benefit to the employer is that the employees will perceive that allegations are being taken seriously.
In corporate criminal matters, a proper investigation will preserve the evidence needed to recover losses and provide crucial damage control. Information or allegations of a criminal nature may automatically cause concerns that the proper investigative authorities can limit. An important aspect of bridging the gap between corporate and criminal law is a qualified individual to act as a liaison between the corporation and the local law enforcement authority.
For example, should an employer receive information that one of its employees is committing larceny of documents or client lists, a corporate investigation would be imperative before the company can take proper action. You should remember, however, that this type of investigation may also need to be disclosed to a law enforcement entity, and such an entity may not take into account the sensitive nature of the investigation. Typically, the information gathered through an investigation conducted by a law enforcement entity becomes public record under the Freedom of Information Act and is easily accessible by anyone who has interest in obtaining it at the close of the investigation. Therefore, disclosure of your investigation to shareholders, employees, and even your competitors is possible.
Who should conduct the investigation?
Once you decide to conduct an investigation, the corporation must decide to whom to assign this important task. Many different options are available to conduct investigations. Some corporations have an in-house staff of investigators to complete any and all investigations that affect the daily activity of their businesses. For harassment issues, you may have trained human resource staff.
Externally, there are investigation agencies that vary from small, one-person operations to worldwide corporations. The size of your company and the type of investigation will determine the type of agency that conducts your investigation. For example, a one-person operation may be more beneficial for a small company since the cost of conducting an investigation is unlikely to be as high as with a large investigation firm. A large investigation firm, however, will have the benefits of readily available resources, such as experienced computer technicians, other technical advisors, and operatives to conduct surveillance and interviews.
Another option is an investigation conducted by an attorney within the law firm that represents your corporation. There are benefits to using an attorney who has investigative experience, including the attorney’s ability to act as the orchestrator of the investigation, leaving your employees to perform their daily tasks. In addition, if the attorney is already familiar with your company, you may save money by reducing the time it takes to familiarize the investigator with your corporate structure and internal procedures. A relationship with a preexisting client allows the investigator the opportunity to intervene early in the investigation and to begin advising the client of the necessary steps, including the preservation of evidence and retention of experts to assist in securing and analyzing evidence.
A further benefit associated with having an attorney conduct the investigation is that such an investigation will be protected by the attorney-client privilege. That allows the attorney to conduct a full and thorough investigation for the benefit of the client without the discovered information becoming public. If needed, and depending on the scope of the investigation, the attorney may use resources such as investigating agencies on a subcontracting level to participate in the collection of specific types of evidence.
To identify the appropriate investigative entity to address your current problem, you may contact your attorney for a referral to a reputable investigation firm or you may contact the larger investigation firms directly. The larger firms can provide an initial evaluation or refer you to a smaller firm that can provide the appropriate services. Choose an investigator based on its experience, remembering that good contacts in the field may save you time and money. A good investigator will also provide suggestions on how to work within your budget.
No matter who conducts your investigating, there are certain steps that every investigation should include. Taking the following steps will ensure that the investigator is able to conduct a complete and thorough investigation.
Set a goal and identify a specific purpose of the your reserach. Identify with your investigator the specific goals of your investigation. Such goals can include the recovery of some item, identification of whether sexual harassment is occurring, collecting and preserving evidence in preparation for a civil litigation, and/or whether the investigator should present evidence to the local law enforcement authority for a criminal arrest. Identifying those competing goals at the outset will determine the method in which your investigation is conducted and will establish priorities.
Gather the necessary information to begin the process. The proper way to conduct this enforcement is very methodically. Before conducting any interviews or seizing any information, a brief background investigation should be conducted, which can include a review of records, computer searches through corporate databases, or speaking with supervisory personnel who may have basic information about the situation at hand. That will help you identify the key factual circumstances, including potential targets of investigation, witnesses, and victims. The appropriate method is to address each issue separately.
Identify any possible criminal actions that may require the involvement of a law enforcement authority. It’s necessary to identify criminal activity early in the investigation to ensure that evidence is seized and secured in such a manner that law enforcement will be able to use it. The benefit of early identification is that your investigator will be able to act as a liaison with the local police department and state attorney’s office within the jurisdictional area. An investigator with prior law enforcement experience may be more helpful in that regard. Remember that when probable cause of a crime is established, it’s imperative that law enforcement be advised.
There’s no greater error than locating evidence of a crime during the course of your investigation and lacking the support of local law enforcement to obtain search warrants to collect it. That will affect your ability to present criminal charges against the accused.
Identify potential evidence. Evidence may be obtained through many sources and can include any tangible item, such as documents, as well as electronically stored data and recordings that can support your case. Much evidence procurement can be completed by an employer. In the age of forensics and computers, however, it’s often necessary to enlist experts such as computer analysts and forensic technologists to assist with the seizure of evidence. For example, a computer analyst will be able to seize a computer and create a “mirror image” of the hard drive for forensic examination and can download e-mails from the business server.
An outside investigator can be helpful in other areas as well. It’s often necessary to obtain assistance with regard to conducting surveillance, conducting numerous witness interviews, and obtaining general background facts. Further, it’s necessary during the collection of evidence to properly identify, secure, package, and document the chain of custody. An experienced investigator will be able to assist you in locating such evidence and ensuring its admissibility in future litigation.
You should know how to identify when a situation requires action and not be afraid to ask for help investigating. When conducting an investigation, you should tailor your methods to your particular needs and leave no stone unturned.
If you feel you have been mistreated by your employer or in your place of employment and would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.
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Source: Eric P. Daigle, Investing in Investigations, 12 Connecticut Employment Law Letter 2, (January 2004)
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