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Generally, situations that may lead to employee discipline or discharge call for some degree of investigation, unless the employee confesses or is caught red-handed.
The employee may be terminable at will, but for practical and legal reasons it is often preferable to be able to support a termination decision with facts obtained through a reasonable workplace investigation.
Prompt and thorough investigations are also critical to responding to harassment allegations. They can be the single most important determinant of an employer’s liability in many such cases.
The Attorney’s Role in Employment Investigations
An outside attorney’s role in such employment investigations will depend on the circumstances requiring investigation and the employer’s internal resources.
Some employers may have the in-house ability to conduct investigations that will withstand legal scrutiny without any outside legal guidance.
Many others, however, may have personnel able to conduct investigations who would benefit greatly from legal consultation prior to and/or in the course of the investigation and related decision-making.
With serious allegations against an employee and/or a high risk of legal challenge to the employment decision that will result from an investigation, an employer may wish to employ an attorney to conduct the investigation directly. However, it can be problematic ethically if the employer uses its regular attorney and later desires to utilize the attorney’s services to defend related legal claims.
How We Can Help
The attorneys of Harris Dowell Fisher & Young, L.C., are experienced in assisting employers with employee investigations. We know what facts to investigate, how to most effectively conduct workplace investigations, and the potential legal pitfalls of inadequate employment investigation.
We frequently provide guidance to employers conducting their own employment investigations. We also are available to directly conduct such investigations where other counsel is likely to be relied upon for defense of any related claims.
Contact us to discuss how we may best assist you in this regard.