Component 5: Investigations

When employers first hear of potential personnel problems they have two options.

The approach of many employers has often been to wait to see if it, in fact, develops into a full blown crisis. The employer gambles that not every problem will reach this stage and, for those that do, they hire attorneys to investigate and litigate the dispute.

The second approach is to address the potential problem as a personnel management issue and seek an effective resolution at the earliest possible date.

In the past, the former has been a reasonable approach. However, with the increase in avenues of redress for employees coupled with the ever increasing size of damage awards in employment litigation, HRCRRA recommends a reconsideration of the gamble. HRCRRA, as part of its comprehensive Employee Relations Program, provides a timely investigation of all potential employee problems.

In regard to these investigations, in the past such investigations have often been conducted by attorneys in order to provide protections for the findings through the prophylactic of “attorney-client” privilege.

While HRCRRA can arrange for an attorney to conduct such investigations at a reduced cost, HRCRRA recommends that a full, complete and transparent investigation be conducted. There exist several reasons for this recommended course of action:

• Cost —Rather than paying an hourly rate for an attorney investigation, the HRCRRA client may elect to have the matter investigated under the less expensive flat rate fee.

• Efficacy - The development of the law relating to employer responsibility for damages arising from certain types of employment disputes, most notably sexual harassment cases, turns upon whether the employer has fairly and fully investigated employee complaints.

By instituting an independent investigation process, the employer can effectively negate any assertion of responsibility for the existence of a hostile work environment.

In addition, in the event that an employee files a complaint with any outside agency, the existence of a completed independent investigation will provide substantial evidence to vindicate the employers’ decision making.

Of course, in those cases in which any validity is found to the complaint, the employer’s immediate remedial action will substantially undermine any legitimate basis for further action

• Limitations on the attorney client privilege The attorney client privilege is designed to support our adversarial justice system. In recent years the privilege has been eroded. Particularly in the case of an asserted institutional privilege, the ability to keep personnel investigations confidential has been limited.

• Effect upon Employer-Employee Relationship In deciding whether to rely upon a full, independent and transparent investigation the employer is recognizing the importance of institutional fairness in managing human resources. That is, rather than continue the past practice of viewing employees as inevitably adversarial to the goals of the organization the employer must value those employees as an essential element of production. One of the most important factors in employee job satisfaction is a sense of organizational fairness.

By insuring an independent, fair, and transparent investigation process, the employer reinforces its commitment to effective management of human resources. In contrast, confidential investigations made by management are often misinterpreted as being an attempt to “white wash” the complaint and lead to employee suspicion of management motivation.

For further information see our White Papers section.

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