When a workplace issue arises that requires an internal investigation, such as allegations of harassment, discrimination or misconduct, medium and larger businesses without in-house counsel often face challenges in managing the process effectively.
Using outside counsel to conduct or oversee an internal investigation concerning employee conduct can provide significant benefits related both to compliance with the law and protection of the company’s reputation and interests.
When much is at stake, an informed approach is key
One of the most important potential advantages of engaging outside counsel is neutrality. Internal managers or HR professionals may unintentionally allow bias, personal relationships or fear of internal politics to influence an investigation. Outside counsel, however, provides objectivity and independence. This can enhance the credibility of an investigation and reassure employees that their concerns are being addressed fairly and thoroughly. It can also demonstrate to regulators or courts that a company took the matter seriously and acted responsibly in the wake of learning about the issue at hand.
Another reason that many companies opt to involve outside counsel in internal investigations is the protection of the attorney-client privilege. Communications with external attorneys about an investigation are generally privileged, meaning that they cannot be easily disclosed in litigation. If a company relies solely on internal staff or third-party investigators, findings may be subject to discovery, potentially exposing sensitive information. By using outside counsel, businesses can more effectively preserve confidentiality while still addressing issues transparently and appropriately.
Legal compliance is also a key consideration. Workplace investigations must adhere to federal and state employment laws, as well as internal policies. Outside counsel can focus on ensuring that internal procedures are followed in an informed way, evidence is gathered lawfully and interviews are conducted in a way that minimizes liability. They can also identify legal risks that internal staff may overlook due to unintentional blindness to the ways things have always been done, such as retaliation claims or wage-and-hour issues that surface during the process.
Outside counsel can also help management evaluate findings, determine appropriate disciplinary actions and implement policy changes to prevent future issues. This holistic approach can ultimately both address the immediate issue prompting an investigation and strengthen the company’s overall workplace culture and risk management.