Decisions by the U.S. Supreme Court provide compelling reasons for employers to conduct an internal investigation in response to complaints of discrimination, workplace harassment and retaliation, as well as regulatory violations, by employees, vendors, customers and others. A prompt and thorough investigation can provide significant protection to a business. An untimely, inadequate or biased investigation can contribute to liability, the loss of customers or government contracts, low employee morale, and even be a public relations fiasco.
While every internal investigation will be different, certain rules should always be followed. Businesses should ordinarily conduct investigations to respond to complaints or suspicions of unlawful discrimination, workplace misconduct, rule or policy violations, and criminal acts. Generally, the purpose of an investigation is to discover the facts necessary to make a decision about a particular issue. Businesses should engage a trained and objective corporate lawyer or investigator to conduct the investigation. At the initial stage, a business should determine whether an investigation should be conducted under the attorney/client privilege. If it is not privileged, the investigation will likely be discoverable (that is, subject to forced disclosure) in a government investigation and/or litigation.
The investigation should also be conducted in a timely fashion – ordinarily, as soon as possible after a complaint has been made, misconduct is suspected, or the alleged incident occurs. A careful fact finding process is critical to the decision-making process and a favorable legal outcome. The fraud investigator should be as impartial as possible. All steps in the process should be recorded and documented in writing. This documentation may be critical to demonstrating the fairness of the investigation and decision-making process. And finally, the results of the investigation should be communicated to concerned parties with their corporate lawyers.
Baird Quinn has significant expertise conducting large, complex, and sensitive internal investigations for our clients. We have conducted internal investigations and audits involving an array of legal and non-legal challenges, including discrimination and workplace sexual harassment claims, employee misconduct issues, suspicion of commercial fraud, allegations of wage and hour violations, Sarbanes-Oxley complaints, and other regulatory compliance issues. Our lawyers possess a significant breadth of skills and experience derived from regulatory experience, and hundreds of internal investigations conducted on behalf of multiple Fortune 500 clients, professional sports franchises, and the United States Government. You may learn more about our Denver labor and employment lawyers at the following link.