Should a company itself investigate or engage an outside investigator? Attorney-client privilege protects company internal investigations.
Each company should have a robust anti-discrimination, anti-harassment policy in its handbook. The policy is insufficient unless it outlines a method for employees to report discrimination and harassment that violates the company policy. But employers are often stumped with how to handle the situation when an employee does blow the whistle and make such an allegation. Should the company itself investigate or engage an outside investigator?
Many companies engage their attorney to conduct these internal investigations. The attorney will often take the following investigative actions:
- Interview the complainant, witnesses, supervisors, and managers
- Review company records, including employee files and performance reviews, and
- Evaluate employee write-ups
The attorney is seeking to discover whether discrimination or harassment occurred, as well as whether there has been any retaliation against the complainant. But what are the advantages to using an attorney through this process?
- An attorney providing legal analysis provides attorney-client privilege
- The attorney acts as a neutral third party who is not part of the culture of the employees
Recently, the first advantage, the attorney-client privilege, has come under fire. In In re Kellogg Brown & Root, Inc., No. 14-5055 (D.C. Cir. 2014) the D.C. Circuit Court of Appeals held that the attorney-client privilege protected documents created during an attorney compliance investigation after an employee became a qui tam relator (a whistleblower in a federal case). The D.C. Circuit Court of Appeals’ decision preserves the incentive for companies to support vigorous compliance programs. In addition, it persuades companies to engage attorneys to conduct in-depth examinations without worry that the results of the investigation will land a company already in hot water in a boiling pot. This allows companies to find out exactly what has been going on so that they may take immediate and corrective action.