In general, employers have a responsibility to investigate any allegations of harassment or discrimination in the workplace. Many articles have been written about the importance of hiring a lawyer to conduct these investigations. This is largely because lawyers are considered “experts” on this subject. What happens when “experts” have been accused of mistreating employees or coworkers by their own colleagues? Should law firms conduct internal investigations into employment? The short answer to this question is “no”.
Although many lawyers can conduct their own internal investigations into employment, the benefits of hiring an outside attorney far outweigh the perceived benefit of handling it internally.
When Is an Employment Investigation Required?
State and federal laws require employers to investigate and act promptly when either (1) discrimination or harassing complaints are made, or (2) they should have known discrimination was occurring. Employers who do nothing when one of these situations happens are at risk of liability.
Employers should conduct an investigation when they suspect that an employee is not performing as expected.
- A worker has reported that they have been subjected to workplace harassment or discrimination.
- A worker has affirmed that they have experienced workplace harassment or discrimination.
- A workplace dispute has led to an employee retaining an attorney.
- A lawsuit has been filed by an employee against their employer.
Employment issues are not limited to law firms. A legal assistant may feel harassed by peers. An associate may be experiencing unwanted advances by a shareholder. A law firm faces the same dilemma as any employer when one of these scenarios occurs – should we deal with it ourselves or hire someone else to do so?
Who has the knowledge and experience?
Face it. Lawyers do not have a thorough knowledge of all areas of law. We all attended law school and were taught a variety of legal subjects. And we all studied hard for the bar examination. How much of that knowledge stayed with us once we started working? It is impressive if you are an experienced criminal defense lawyer and can still recall the rule against perpetuities.
It is not enough to be an attorney to qualify someone for an employment investigation. Like any other field of law, employment law is complex and nuanced. To conduct employment investigations, lawyers and law firms need someone with experience and knowledge of these nuances and complexity.
Who will be unbiased?
It is still best to hire an outside attorney for an employment investigation, even if the lawyer in question has employment law experience or if there is an employment law attorney at the firm. Knowledge and experience are only part of the puzzle when it comes to conducting an employment investigation. Unbiassing yourself is another important aspect.
The purpose of an employment investigation is to answer many questions. One question that often comes up in these investigations is: Did the employer do something wrong? When an employer conducts the investigation themselves, they will ask: Did I do anything wrong? We all want to be unbiased but it’s hard to remain neutral when our business is on the line.
It is wonderful if a lawyer, or a law firm, can remain truly unbiased. It is important to eliminate any appearance that bias exists. Investigations into employment can be delicate. When lawyers or law offices uncover information but are accused of bias, their credibility can be ruined.
Who Can Save You Time?
Time is another factor to be considered when conducting an investigation. Employment investigations can take a lot of time. There are often many people to interview, many details to discuss, and unexpected twists and turn. A law firm that conducts an employment investigation on its own is wasting valuable time. This could have been spent working with clients and running the business.
A lawyer or law office that tries to conduct a job investigation while continuing their normal representation of clientele may end up having a poor-quality investigation of employment and a poor-quality representation. A legal ethics investigation may be initiated if there is poor representation of clients. The law firm will then have to deal with two problems, one of which was easily avoidable.
Although they cannot outsource representation to their clients, they can outsource employment investigations.
Who will save you money?
Wait until you read the next part. If you’re still not convinced, you should be. A third-party employment investigator may actually be able to save law firms and lawyers money. You might be wondering how spending more money can actually save you money. Let’s take a look at it.
Lawyers and law firms earn money when they represent their clients, regardless of whether they charge by the minute, a flat rate, or a percentage of a settlement. Lawyers who spend their time on an internal investigation of employment leave less time for representing clients. Less time spent on clients means less money. It is rare that spending money on an outside employment investigator can actually save you money.
Final Thoughts
Lawyers are intelligent. Many lawyers can conduct their own investigations into employment. Just because someone is capable of doing something doesn’t mean they should. Hiring outside counsel is far more beneficial than handling the situation yourself. Think about who you will call the next time your firm or you face a possible employment investigation. (Hint – it’s not Ghostbusters).
The post Employment Disputs at Law Firms – Why External Aid Wins Over an Internal Crusade first appeared on Attorney at Law Magazine.