Handling External Investigations: Federal

Author: Ina R. Silvergleid

Summary

• Common workplace incidents that give rise to the need for external investigations include widespread, serious or criminal conduct, misconduct by a high level employee, the necessity for an immediate investigation, lack of qualified employees to conduct an investigation, or where the employer chooses to hire an outside investigator to preserve all appearances of objectivity in particularly sensitive cases. See External Investigations, Generally.
• When investigations are handled by outside counsel, the HR professional or employer's investigative liaison still can play a vital role behind the scenes. See External Investigations, Generally.
• Despite the identity of the investigator, employers are obliged to preserve all relevant evidence when notified of potential misconduct. See Documentation.
• Employers must be particularly careful and discrete regarding the results of investigations. It should designate employees eligible to review the findings in advance, and should only make exceptions in rare cases. The more individuals who are privy to the findings, the harder it will be for the employer to argue that the information should remain confidential. See Documentation.
• Given the sensitive nature of conduct that calls for an external investigation, employers are typically well advised to retain outside counsel. Among the benefits of hiring an attorney is that one or more evidentiary privileges may render the findings confidential. See The Attorney Client and Attorney Work Product Privileges.
• The employer must decide whether it will provide legal representation to current or former employee in the event it becomes apparent during the course of the investigation that the employee could be subject to criminal prosecution or has a conflict of interest with the employer. In some cases, criminal activity by the employee could be attributed to the employer. See Whether to Retain Separate Counsel for Employees.
• Oftentimes, the best way for an employer to conduct business as usual during the pendency of an investigation is to retain an outside party to handle the investigation. See Minimizing Business Disruption During the Investigation.