Employers are facing more challenges than ever when managing allegations of workplace misconduct. Investigations of misconduct or wrong-doing in the workplace can be complex, particularly when the allegations are related to harassment, discrimination or a hostile work environment. A properly conducted investigation can be vital to mitigating organization risk and employers may want to consider seeking assistance from legal counsel to minimize exposure and potential liability.
Even the most seasoned organizational leaders and human resources teams should consider involving legal counsel to assist with complaints and allegations of workplace misconduct. Legal counsel can assist with workplace investigations in a variety of ways, from advising on the necessary steps to take to becoming directly involved and even conducting the investigation on behalf of the employer. It may even be best to let counsel conduct the investigation to ensure thoroughness and impartiality.
In their April 2024 release of “Enforcement Guidance on Harassment in the Workplace”[1], the Equal Employment Opportunity Commission (EEOC) has not only provided a clear legal analysis of harassment in the work-place, but has also set forth standards for imposing employer liability for harassment. Given this increased focus on the employer’s responsibility for preventing workplace harassment, seeking early involvement from legal counsel in any complaint alleging discrimination and/or harassment based on race, color, national origin, sex/gender, age, disability, genetic information or any other protected class will give counsel the opportunity to provide meaningful guidance on how to apply the new EEOC standards of liability in the investigation and follow-up processes. Counsel will also be able to provide practical advice, a framework or investigation services that will help an employer avoid negligence in responding to an allegation of workplace harassment or discrimination in light of the EEOC’s guidance.
Where else can involvement of legal counsel in workplace investigations help reduce employer exposure to liability? The American College of Trial Lawyers’ position is that investigations of suspected wrongdoing by senior management should always be conducted by someone outside of the company[2]. When the in-house investigator is in the same department as the individual to be investigated or reports to the individual to be investigated, counsel’s involvement can help ensure the investigation is objective, should a claim arise from the complaint. Additional benefits of involving legal counsel in an investigation include:
- confidential communications and legal advice placed under attorney-client privilege,
- the relevant legal knowledge to provide best possible guidance throughout the investigation and,
- the depth of resources and investigation skills a law firm with experience conducting workplace investigations has at their fingertips.
If you have an investigation or complaint you need assistance with, do not hesitate to call us. The investment in early involvement from legal counsel could save your organization from long term risk and exposure.
For more information and to learn more, reach out to Jeremy Grant at jgrant@primmer.com.
