As employers largely transitioned back to an in-person workplace in 2022—either full-time or hybrid models—they experienced a noticeable increase in complaints requiring investigation. These complaints ranged from coworkers experiencing obnoxious behavior to allegations of patterns of abuse by corporate officers. These problems aren’t new. A 2016 Columbia Business School study of North American CEOs found that “a striking 84% believe their company needs to improve its culture,” but the pandemic underscored the need for action. Employers are thus investing in outside counsel investigations to help solve complex personnel problems and improve workplace culture.
But as 2023 has brought outside economic challenges and uncertainty, many employers are turning inward, relying more on HR to conduct such investigations. This is certainly understandable, and in fact, some investigations are often best completed by trained in-house HR professionals—acting upon advice from legal counsel as needed.
In other circumstances, hiring outside counsel to conduct an internal workplace investigation is the better approach. The key is knowing when an outside investigation is warranted. There are some situations that nearly always warrant investment in outside counsel.
When HR would be investigating allegations against high-level executives or individuals above them in the organization’s reporting structure. Even trained and experienced HR professionals shouldn’t investigate allegations against individuals in significantly higher or more influential positions than their own, nor should they investigate individuals above them in the reporting structure. This puts unfair pressure on the HR professionals, who might understandably be concerned that their role in conducting the investigation could negatively impact their own career path—or the quality of their working environment. Even if the HR professionals are able to put such concerns aside, the person under investigation might feel uncomfortable working with HR in the future. Such discomfort could affect working relationships following an investigation. These factors also endanger the strength and integrity of the investigation because they could affect the way it’s conducted. Unless an organization has an independent department dedicated to conducting these types of investigations, inquiries of allegations against higher-level and more powerful individuals are best handled by outside counsel.
When allegations involve claims against HR. HR shouldn’t investigate allegations that include claims of wrongdoing by HR professionals. HR is often used as a scapegoat for employees’ frustrations, but general grousing about HR supposedly being too slow or difficult to reach doesn’t usually rise to the level of allegations of wrongdoing. For example, an allegation that HR favors a particular race or gender in applicants while recruiting or promoting shouldn’t be investigated by HR.
When the allegations involve a recurring problem that has been resistant to change. Most HR professionals are familiar with situations involving managers who have been the subject of the same type of allegation more than once. For example, if a department head is accused of bullying behavior, that person may be sent to counseling or coaching if the allegation is substantiated. It’s not uncommon for there to be some improvement for a period of time—before new complaints involving claims of similar behavior surface. This creates a situation in which using outside counsel to investigate is a wise choice. Regardless of the outcome of HR’s previous investigation, there will likely be an internal perception that a repeat investigation of similar allegations is already biased. If HR exonerated the manager the first time around, there will be allegations of another “do nothing” investigation. Likewise, if HR substantiated earlier allegations against the manager, there will be a perception of bias against the manager.
Outside counsel as an investigator will eliminate those concerns. Use of outside counsel to investigate persistent concerns also lends a fresh perspective that allows an organization to discover a way to effectively address the persistent problem. Maybe the manager needs to be terminated, or, if the allegations aren’t substantiated, HR can use the new investigative details to address underlying problems within a department.
In these scenarios and others, hiring outside counsel can bring training and experience with analyzing and reporting on detailed facts in a manner that will highlight areas for improvement if the allegations are substantiated. If the allegations aren’t substantiated, those findings carry more weight when they have been made by an outside counsel’s investigation.
So before you proceed, consider whether you are facing a situation that should be investigated by outside counsel.
Bernadette Sargeant is a partner in Stinson’s Washington, D.C., office. She may be reached at bernadette.sargeant@stinson.com.