Labor & Employment Developments Blog

I read an interesting post this week at the HR Observations blog that addressed what to do when the victim of alleged harassment is a human resources employee.  In considering how to craft a harassment policy that would provide a solution for the HR/victim scenario, the suggestions centered on involving an outside investigator in the process.  Possible outsiders included: a member of the Board of Directors; an outside employment attorney; or an HR consultant.

I think that the discussion of this issue could be broadened to include any scenario in which the alleged harasser is a highly placed executive, regardless of the victim’s identity.  In practice it is very common for plaintiffs’ attorneys to attack an investigation as biased or investigators as too intimidated to provide an objective report.  This kind of argument may gain traction if the alleged harasser has enough authority to make it a credible assertion.  In those cases, it makes good sense to bring in a third-party outsider to do the investigation.  But who should it be?

Of the suggestions offered, I favor an outside employment attorney in all cases; and I’m not just saying that because I am one.  Allow me to explain.  One critical aspect of this scenario is eliminating the specter of bias in the form of divided loyalties or an intimidation factor.  In my view, this rules out a member of the Board of Directors, since they will be assumed to be inclined to do what is best for the company, rather than merely seeking the truth.  Also, you would have to be lucky enough to have a member of the board who has the appropriate training and background to conduct an effective harassment investigation.  This is not a frequent occurrence in my experience. 

This leaves an HR Consultant or an outside employment attorney.  Both have the drawback of being paid for their time but that is unavoidable.  However, in most instances, the company will have separate outside employment counsel that it uses for litigation and will not directly involve them in the investigation.  Thus, the outside employment attorney cannot expect to have an on-going relationship with the company after the investigation concludes; it is most likely a one-time job.  The HR Consultant likely provides other services and may have a past relationship with the company or anticipate a future relationship in which investigations are just one aspect.  Score at least a minor point for the attorney on the bias scale.

Both the HR Consultant and outside employment attorney, if chosen carefully, have sufficient investigation skills and knowledge of employment law to do a good job.  We’ll call that one a push.  This brings us to the critical point – the end game.  The worst case scenario in these situations is litigation.  If it comes to that, who would you rather have testifying for you about the investigation that formed the basis of your decisions and actions?  An HR Consultant who may or may not have ever testified in a deposition or court, or a trained litigator who has been in those settings hundreds of times.  No contest – the attorney wins.  I’m not suggesting that there are no HR Consultants who could do as well or better than an attorney but in general, I think attorneys have a strong advantage in these situations.  At the very least, I believe it would be much easier to find a qualified attorney than an equally qualified consultant and time is of the essence in these scenarios.  Let me know if you agree or disagree.

In the interest of full disclosure, I have in my practice conducted outside investigations for companies but I have never been called upon to testify.