Workplace investigations are an inevitable occurrence in running a growing and successful business, including businesses engaged in the jewelry and precious metals industry. Although the issues to be investigated range from theft to sexual harassment to workplace violence, there are some general principles worth remembering when an investigation is warranted.
Don’t Use Your Trial Lawyer as Your Investigator
If your company is large enough that you happen to have a favorite outside litigation attorney who would represent the company at trial, it is best to avoid risking turning your trusted outside counsel into a potential fact witness. If it becomes desirable to have the investigator testify at trial, you run the risk of either not being able to use your preferred attorney at trial or not being able to have the investigator testify. That said…
Absolutely Do Use a Lawyer
Only if the matter is truly trivial relative to the cost of using an attorney should you not use an attorney as your investigator. This is for one simple but powerful reason: use of an attorney protects the investigation under the attorney-client privilege. And because the attorney-client privilege can be waived, it essentially provides the company with the option of whether to use the investigation at trial. If the facts concerning the investigation and what it reveals are favorable, the privilege can be waived, and the investigator can testify. If the investigation reveals a number of bad facts for the company, the investigator cannot be compelled to testify by the other side.
First come the immediate, in-the-moment decisions: Does law enforcement need to be called? Does the person being investigated need to be suspended? How do we preserve relevant evidence?
But promptness doesn’t end there. Moving into the investigatory phase as soon as possible can also help shield an employer from liability. For example, taking prompt, effective remedial action can be a defense to hostile work environment sexual/racial harassment claims. There’s simply no reason to wait.
Preserve Footage and Documents and Have Them Ready
It is important to handle obvious but time-consuming preliminaries before your investigator arrives. For example, in a harassment case, if the company has a written record of the complaint, having that record and the personnel files of both the complainant and the alleged harasser available allows your investigator to get started immediately. In a security investigation, simply having any relevant surveillance footage immediately available to the investigator in an easy-to-use format can save you thousands of dollars in wasted attorney time.
Make Limited, Reasonable, and Believable Promises of Protection and Confidentiality to Witnesses
A seasoned investigator will be familiar with what lawyers refer to as an “Upjohn warning” from the case of Upjohn v. United States, 449 U.S. 383 (1981). An Upjohn warning is what the investigator reads to witnesses at the beginning of interviews. Employees are told whom the attorney represents (the corporation, and not the employee), that the attorney-client privilege belongs to the corporation, and that the corporation may waive the privilege and disclose the substance of the interview to third parties, including at a trial. Furthermore, employees are instructed to keep the substance of the interview confidential. They are also told that the company will not tolerate retaliation of reprisals against a cooperating witness but may discipline or terminate those who do not cooperate.
This warning should be in the form of a script read verbatim off a piece of paper. The use of a script serves to preserve the attorney-client privilege of the interview while making clear what preliminary information was given to each witness.
Back Up Those Promises by Making Clear to Everyone That Retaliation Will Not Be Tolerated
The company simply must live up to the promise of no retaliation/reprisal made in the Upjohn warning. Subsequent mistreatment of cooperating witnesses can expose the company to (perhaps worse) liability even if there is no viable underlying claim which lead to the interview in the first place!
Be Careful of “Mission-Creep”
Occasionally, an investigation will open a proverbial can of worms that is entirely unrelated to the underlying investigation. For example, I once had a sexual harassment investigation reveal that several employees wholly uninvolved in the alleged harassment were both using and dealing drugs in the workplace. While these types of ancillary issues are themselves important to investigate, it is important to take steps to keep the investigations separate. Simply having a lawyer visit the premises with a broad “sunlight is the best disinfectant” mandate is not advisable.
There are many other issues to consider in conducting a workplace investigation (e.g., the order of the interviews, documents to have prepared in advance, the form of the report, external reporting obligations, following up with the complainant), but promptly engaging an experienced outside attorney investigator is a very good place to start.