what claims can an employee bring against an attorney in an internal investigation

Counsel is often called upon to handle or supervise internal investigations into serious human resources matters. These matters can range from allegations of sexual harassment to employee drug abuse. Such matters can expose your business to substantial liability, yet the company’s investigation may be required by law.

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Can a company represent an employee in an internal investigation?

non-attorneys in conducting an internal investigation — subject to the parameters we discuss below in ... investigation the non-attorney investigator s sent a final memorandum to the Company’s general counsel’s office.17 District Court Order . The plaintiff/relator in Barko filed an action in 2005 against the Company under the False ...

What laws and legal situations require employers to conduct investigations?

Private sector employees who do not work in unionized workplaces do not have a right to any representation during investigations — legal or otherwise — even if the investigation may lead to criminal charges. That is not to say that employers must refuse the presence of counsel; employers may agree to employees' requests to have counsel present.

How do you conduct an investigation in the workplace?

 · Counsel is often called upon to handle or supervise internal investigations into serious human resources matters. These matters can range from allegations of sexual …

Can an employee bring a lawyer to an investigatory interview?

 · Independent Attorney Workplace Investigations. When an employer becomes aware of employee claims of discrimination or harassment, there is an obligation to …

What should you not do in a workplace investigation?

Compromising Confidentiality From a practical standpoint, talking too much during the investigation—telling a witness what another witness said, revealing your personal opinion to one of the employees involved, or publicizing the complaint in the workplace, for example—can lead others to doubt your objectivity.

What is a flawed investigation?

“Flawed” investigation means claim for unfair and wrongful dismissal upheld.

What is the most important part of an employee investigation?

Interviews are perhaps the most important and probative aspect of any workplace investigation – if they're conducted properly. The complainant needs to feel comfortable sharing their story without fear of retaliation or prejudgment.

Are internal investigations confidential?

Following its December 2019 decision holding that confidentiality mandates during the course of workplace investigations are presumptively lawful, the National Labor Relations Board (NLRB) recently held that employers can instruct employees to keep an open internal investigation confidential.

What is unfair disciplinary action?

Examples of this include stealing on the job, insubordination, using offensive language, breaking a law outside of work, or being excessively tardy. The second is that the employee's job performance is deemed insufficient. There are systems in place which allow a federal employee to appeal a disciplinary action.

What are procedural flaws?

Procedural flaws are flaws in the procedure of a trial. If a procedural flaw affects the result of the trial, the only way to correct it is to grant a new trial. Examples. Newly discovered evidence. Improper conduct by counsel.

What is a fair workplace investigation?

Fair Work Ombudsman investigations FWO investigations often involve an assessment of whether employees are being paid correctly and provided with the correct employment entitlements (eg leave, breaks, etc) and whether employers have kept proper employee records.

What questions should I ask in a workplace investigation?

HR INVESTIGATION QUESTIONS TO ASK THE COMPLAINANTWho committed the alleged behavior?What happened?When did this occur? ... Where did this happen?Did you let the accused know that you were upset by this?Who else may have seen or heard this as a witness?Have you reported or discussed this with anyone?More items...

What triggers a workplace investigation?

Various situations arising in the workplace can trigger the need for an investigation – alleged discrimination or harassment, workplace bullying or abuse, inappropriate use of the internet or social media, theft of company property, fraud, policy breaches, statutory violations, allegations of just cause and so forth.

Can employees talk about investigations?

Prohibiting employee discussions of an ongoing investigation is allowed only if the employer can show that it has a legitimate business justification outweighing the employees' rights.

Are EEOC investigations confidential?

Information obtained from individuals who contact EEOC is confidential and will not be revealed to the employer until the individual files a charge of discrimination.

Why are investigations confidential?

Employer and investigator requests for confidentiality Encourages employees to raise complaints and participate in investigations; Protects employees from retaliation and unfounded rumors; Protects the integrity of the investigation by, for instance, preventing witnesses from aligning their stories.

What is internal investigation?

Internal Investigations. When an employer receives a complaint from an employee concerning a fellow employee's alleged misconduct, the employer may ask someone in the human resources department to conduct an investigation or seek the assistance of an outside investigator. Sometimes, senior-level management may assist in conducting investigations.

What happens if an employer fails to investigate sexual harassment?

If an employer fails to investigate misconduct, such as sexual harassment or threats of violence, the alleged victim may have grounds for a lawsuit against the employer. Whether an employee who is being investigated for misconduct has a right to legal representation during an investigation depends upon the type of employment.

Can an employer terminate an employee for not complying with an investigation?

Generally, courts have ruled that private sector employers may terminate an employee for being noncompliant with an investigation. However, courts have also ruled that employers do not have an automatic right to terminate an employee simply because he requested time to consult with an attorney or to have an attorney present during investigative proceedings. Absent bylaws specifically precluding an employee from bringing legal representation to an investigatory interview, an employer may face legal action if an employee is terminated based on his request for the presence of legal counsel.

Does the Constitution protect against private employers?

The Constitution does not protect individuals against the actions of private employers during investigations; however, employees of private sector, unionized workplaces have greater rights than private sector employees in nonunion work environments.

Why are public sector employees more protected than private sector employees?

This is because the Constitution protects individuals from the actions of government, and government employers fall within that scope . Thus, public sector employees have the right to be protected from self-incrimination when an investigation is related to possible criminal conduct, which is why public sector employees generally have the right to have legal representation present during investigative interviews. The Constitution does not protect individuals against the actions of private employers during investigations; however, employees of private sector, unionized workplaces have greater rights than private sector employees in nonunion work environments.

Should employers keep documents secure?

Employers are wise to keep all documents relating to the investigation secure , as the employee who is under investigation has a reasonable expectation of privacy; leaked information that could cause the employee embarrassment may give rise to a lawsuit.

Do you have to have an attorney for an employee?

Any employee — whether employed in the private or public sector — has a right to legal representation. However, private sector employers are not required by law to allow an employee's attorney to sit in during investigative interviews.

Why are attorneys considered internal investigators?

Attorneys are often chosen as either internal (in-house) or independent investigators because the employer wants to protect the investigation results through attorney-client privilege. However, attorney-investigators and their clients must be aware that the attorney-client privilege may not attach if the attorney's report contains primarily business-related advice, rather than legal advice. Generally, courts tend to hold that attorney-client privilege extends only to legal advice, and not to business or policy advice. But see United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998) (holding that attorney-client privilege does apply to business-related advice).

What is the safest course of action for an employer?

In many, and perhaps most situations, the safest course of action for an employer is to hire a neutral investigator to come in, interview employees, and conduct a thorough investigation of the claims. Oftentimes, that investigator is also a licensed attorney.

Can an attorney produce a document during an investigation?

Documents that an attorney produces as work-product during an investigation may be discoverable if their contents are used as the basis of the employer’s defense of adequate investigation. See Payton v. New Jersey Turnpike Auth., 691 A.2d 321, 336 (N.J. 1997) (while employers may escape liability if they take sufficient remedial actions to investigate harassment allegations, they may be required to produce their investigative results). This makes sense, because it would be difficult for an employer to prove that the attorney they hired to investigate did their job thoroughly if the notes showing the investigation were not provided as proof. Both the employer and the attorney-investigator should keep in mind that any notes prepared by the attorney during the course of the investigation could be shown in court one day.

What questions to ask about alleged conduct?

Some additional questions to ask should address whether anyone else can speak to the alleged conduct. “Was anyone else there?” “Do you know of anyone else who may have been involved?” “Do you know of anyone else who may have relevant information?”

What happens if you don't delay an investigation?

Don’t delay or fail to complete an investigation. Once a complaint is made, the clock starts ticking. If nothing happens after a complaint is made, a court is likely to draw unforgiving conclusions. An investigation should also come to an end promptly, or a court may infer that the investigation was deliberately left unresolved.

Can witnesses be interviewed in the same manner?

From these interviews a list of witnesses, if any, may be prepared, and the witnesses may be interviewed in the same impartial manner. As this is going on, the timeline may be filled in and a summary of agreed-upon facts prepared. As this process continues, the need for second interviews may arise as different accounts are compared.

Is retaliation a violation of the law?

Don’t retaliate. Retaliation is a separate violation of the law.

What is the importance of being prepared for harassment?

By being prepared, employers can take advantage of safe harbor rules that limit their liability from harassment claims.

Is a good faith investigation reasonable?

Additionally, the decision must be reasonable. While it may be possible to resolve the issue with some training and memoranda, a good-faith investigation may end with one party’s credibility in better shape than the other’s, with attendant consequences. However, employers cannot shy away from making a reasonable, good-faith decision simply because an employee’s reputation may suffer without possibly losing safe harbor protection.

What is the duty of an employer to investigate an employee?

The general duty of any employer who either knows or should know about a discrimination, harassment, threat, or safety problem faced by an employee is to take prompt and effective remedial action to put an end to the problem. In order to know what action to take, or to find out whether action is even necessary, the employer has to investigate the situation and ascertain the facts. Employers that fail to investigate such situations usually lose any claims or lawsuits brought by the employee in response to the problem.

How does a company conduct an investigation?

A company has many different ways of conducting investigations. Sometimes, as noted above, a company might utilize searches or drug tests to investigate a suspected problem. It might also try monitoring of telephone calls or of an employee's use of the company's computer system or Internet access, or else video surveillance of certain areas of the workplace. Finally, use of more traditional means such as interviews by investigators and background checks by government agencies and private companies may be in order. Telephone, audio, and video monitoring issues and background checks are discussed in more detail in this book in the articles dealing with employee privacy rights (see "Employee Privacy Rights And Identity Theft" and "Monitoring Company Computers And The Internet" ). The rest of this paper will focus on the use of company investigators in conducting workplace investigations.

Why do I keep I-9 records?

I-9 records - keep these in a separate I-9 file because it will make it easier to defend against a national origin or citizenship discrimination claim if you can show that such information is available only to those with a need to know (in other words, that those who might have made an adverse job decision were not aware of the person's national origin or citizenship status) - also, if your I-9 records are ever audited, it would be better if the auditor only saw I-9 records, instead of all kinds of other records mixed in that might give rise to reports to other governmental agencies;

What is general personnel file?

general personnel file - job application, offer letter, performance evaluations, letters of commendation, and so on;

Where should information requests go?

All information requests concerning employees should go through a central information release person or office.

Who should access personnel files?

In general, whatever is in an employee's personnel file should be accessed only by those who have a job-related need to know the information. The following general principles apply:

What does it mean when an employer fails to investigate a situation?

In order to know what action to take, or to find out whether action is even necessary, the employer has to investigate the situation and ascertain the facts. Employers that fail to investigate such situations usually lose any claims or lawsuits brought by the employee in response to the problem.

What is the third option for a criminal investigation?

The third option is to use an attorney – either your school attorney or an outside attorney. An attorney offers a unique skill set, but the critical advantage involves the ability to conduct the investigation in a way that ensures that information will be protected by attorney-client privilege. Furthermore, if the attorney hires a private ...

What is confidential information?

The rule provides that confidential information consists of information (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.

Can a non-attorney be disclosed?

While investigatory notes taken by a non-attorney are discoverable in court and may, ultimately, be accessible under the Freedom of Information Law, notes and communications involving an attorney can be protected from disclosure.

Was the principal aware of an improper relationship?

Even worse, the school principal reportedly was aware of an improper relationship but took no action. If the rumors are true, bad press is inevitable and some form of litigation is possible. As a board member, you need to know the facts. Obviously, the matter must be investigated.

Can an attorney disclose confidential information?

On the other hand, an attorney may be obligated to reveal confidential information in response to a court order. And there is a loophole that can require disclosure if the attorney is acting merely as an investigator and not giving legal advice.

Who should lead an independent investigation?

Any investigation that needs to be “independent” (for example, due to current or anticipated securities litigation, or for public or internal perception purposes) should be led by independent board members and conducted by independent outside counsel

Why do energy companies need internal investigations?

Energy companies regularly face challenges that may require an internal investigation to determine the root cause of an issue in order to evaluate how best to remediate and guard against future occurrences of a potentially harmful event. From corruption to data breaches, environmental catastrophes to human resource issues, there are more than enough landmines in today’s legal environment to keep any general counsel up at night. While not all issues may be avoided, having a playbook in place for conducting an internal investigation that identifies and remediates issues is an important step in feeling prepared for whatever may come.

Which amendment protects employees from being violated?

In such instances, the Fifth Amendment rights of employees – who may be facing the difficult decision of whether to either provide statements to counsel conducting an investigation or face potential termination – can potentially be violated.

What happens when a company cooperates with the government?

In attempting to cooperate with a government investigation, a company and its counsel can become so intertwined with the government that an internal or independent investigation can be found to be “attributable” to the government, creating subsequent evidentiary risks for the government.

Do witnesses bring their own counsel to an internal investigation?

Sometimes, witnesses want to bring their own individual counsel to the internal investigation interview. Companies typically evaluate whether to proceed with interviews with counsel based on the relevant circumstances at the time.

Do companies pay for counsel?

Officers and employees may want the company to pay the bills for their individual counsel. Whether the company is obligated to do so often turns on provisions in employment agreements and corporate governance documents such as By-laws. Companies often “indemnify” officers, which usually entails reimbursing fees at the end of a process once it is determined that the officer is entitled to indemnification ( g., acted in good faith), and also “advance” indemnification payments along the way so the officer does not bear legal fees out of pocket. Companies typically require officers to sign an “undertaking” to repay any advanced amounts if it is determined that the officer is not entitled to indemnification.

Do senior officers need counsel?

Senior officers may want counsel of their own , and companies often honor this request even if a short delay occurs while the officer selects an attorney. Legal departments and outside counsel may have recommendations tailored to the specific subject matter, potential government interest, or other factors.

Who conducts the fact finding portion of an investigation?

Keep in mind that if the resulting investigation – the fact-finding portion of it, that is – is conducted by your in-house or outside counsel they may become fact witnesses and their notes may become discoverable. Consider whether the fact-finding portion of the investigation should be conducted by trained professionals – typically human resources or employee relations professionals or outside vendors – who will conduct a thorough, well documented accounting of what occurred.

How to defend against sexual harassment?

In federal discrimination law, an employer may defend against a sexual harassment action (where no tangible employment action was taken, i.e. a termination) if it can prove that (1) it exercised reasonable care to prevent and correct any harassing behavior; and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. In attempting to prove the first part of this defense, employers often point to the existence of an anti-harassment policy and complaint procedure and/or that they performed an investigation into the complaint. Where the employer puts the reasonableness of its investigation at issue by asserting this defense, it waives any privilege that may attach to the investigation-related documents. But where an employer does not put its investigation into issue or otherwise does not try to rely on investigation-related documents to prove its defense (although this may prevent them from effectively proving it), the privileges remain intact.

Did the employer waive the attorney-client privilege?

Even if a privilege did apply, did the employer waive it? Yes. Even more concerning, the Ambrose-Frazier court held that even if the work product privilege or the attorney-client privilege applied to the HR Director’s notes, the company waived these privileges by asserting a Faragher-Ellerth defense to the employee’s harassment claims. The court stated, with conviction: “When a Title VII defendant affirmatively invokes a Faragher-Ellerth defense that is premised at least in part on an internal investigation, the defendant waives the attorney-client privilege and work-product doctrine for all documents it creates as part of that investigation.”

Does the work product privilege apply to HR notes?

Accordingly, the work product privilege does not apply to [the HR Director’s] notes” (emphasis mine). Herzing’s argument that the attorney-client privilege applied to the notes was also unavailing, because the privilege “does not protect a communication ‘simply because it is made by or to a person who happens to be a lawyer,’” and here ...

What is the Ambrose-Frazier v. Herzing case?

In Ambrose-Frazier v. Herzing, Inc., a Louisiana district court decided that the work product rule and the attorney-client privilege did not apply to investigation notes prepared by a company’s HR Director who also happened to be an attorney. After an employee complained of race discrimination and harassment, Herzing initiated an investigation under company policy. The employee later sued Herzing after she was terminated. In discovery, Herzing produced the HR Director’s investigation notes, but redacted several lines containing her “mental impressions and evaluations of the information learned from [HR] interviews that were plainly created in anticipation of litigation.”

What is attorney client privilege?

In contrast, the attorney-client privilege protects disclosure communications against production where they were made in confidence by a client to his or her attorney for the purpose of obtaining legal advice.

What is the first rule of discrimination?

In response, we’ll say the first and most important rule is that no matter what happens, when a discrimination or harassment complaint comes in don’t ignore it. Take it seriously, investigate it promptly, and protect the complaining employee (and those participating in the investigation) from retaliation.