When a complaint is received, does your company plan to contact a labor attorney as the resource to conduct your investigation? This has been the course of action for many HR professionals in the past and for good reason. Who better to conduct your investigation than an attorney with an in-depth understanding of the applicable laws, knowledge of what questions can and cannot be asked, and experience in making an appropriate determination? Unfortunately, the attorney’s response may not be what you expect.
Although many employers would like to engage their attorney to conduct the investigation so that the information obtained becomes covered under attorney-client privilege, this is not often the case in workplace investigation litigation. In cases dating as far back as 1996, courts have repeatedly found that investigation documents, notes, and determinations are not protected as these items become part of a business process rather than legal advice. (Harding v. Dana Transport, Inc., 914F. Supp. 1084 (D.N.J.1996) (No attorney-client privilege protects documents produced by attorney or employer concerning sex harassment investigation). In addition, opinions have been increasing over the past couple of years in both state and federal courts that attorneys who potentially may be called as a material witness in litigation pertaining to an investigation conducted by the attorney, could not act as an advocate for the defendant in the case. In other word, if a lawsuit is filed pertaining to the investigation, your attorney could not represent your company.
For this reason, more and more labor law firms are choosing not to conduct investigations for their clients as a matter of standard practice. Instead, they opt to provide guidance and possible documentation templates that the client company can use to conduct the investigation internally. Employers must have an alternative plan in place to respond to a complaint promptly and conduct a thorough and impartial investigation. Will you be ready when a complaint is made?
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