When an employee complains about workplace discrimination, harassment, or any potentially illegal employment practice, the employer must conduct an investigation. (But you already knew that, yes?) One of the first questions the employer must answer is: who will conduct the investigation? It surprises me how many employers make the mistake of having their lawyer (in-house or from their outside law firm) investigate. This is a very bad idea. Conducting a prompt and thorough investigation can be the key part of the employer’s defense if the complainant later sues (a not unlikely scenario). But if the employer’s lawyer conducted the investigation, what happens when the plaintiff wants access to everything the lawyer said, did or wrote with respect to the investigation? Privilege waived is what, if the employer intends to rely on the investigation in any way as part of its defense.
The attorney-client privilege is a tremendously important tool for employers. They can craft their defense, deal with potentially harmful facts, and strategize around any weaknesses in their case, without fear of having to disclose such communications. But once it’s waived — an inevitable result of having your lawyer don two hats, investigator and legal counsel — all bets are off.
If you think this is merely a hypothetical scenario, think again. The recent case of EEOC et al. v. Spitzer Management is the perfect case study. In-house counsel investigated complaints made by a number of plaintiffs into claims of racial and national origin-based harassment. It then tried to protect some of counsel’s records from disclosure in the ensuing litigation. Not so fast, held the court: “By asserting a defense of adequate investigation, Spitzer has waived privileges for documents that constitute evidence of the investigation of the claims for discrimination.”
So do yourself a favor. If you need to investigate an internal complaint, do not use your lawyer. Think about an independent investigator who wears only one hat: that of independent investigator. (Yours truly, for example).
I’ll have more to say about this case in the upcoming days and weeks. I had the opportunity to sit down with counsel for one of the plaintiffs recently, and the case contains a lot of lessons for us HR types.