Ethical Issues Related to Internal Workplace Investigators
Ethics in the workplace are paramount to the success of any business. A staff that shows good ethics, high integrity, and dedication to remaining fair and unbiased, is a staff that can lead a successful business. Ethics, however, are a complicated topic, especially when you consider the ethical ramifications of workplace investigations. Lawyers conducting workplace investigations must focus on the ethical issues that inevitably appear during such investigations, and must work to mitigate the potential for unethical behavior. Both in-house counsel and third-party investigators are subject to ethics in workplace investigations.
All attorneys conducting workplace investigations can run into the ethical issue of attorney-client privilege. It can be difficult to assess how sweeping or minimal privilege is in these situations, and what may be disclosed during litigation. Laws and rulings regarding attorney-client privilege also vary from state to state. For example, in Payton vs. The New Jersey Turnpike Authority (NJTA), a judge ruled that the NJTA had to disclose all internal investigation documentation noting that attorney-client privilege did not apply in the case of workplace investigations. The court explained that instating such privilege allowed large companies a legal loophole which could allow discrimination to run rampant and unchecked. In other states, it is indicated that attorney-client privilege exists unless or until the client waives their right.
When in-house counsel is involved, attorney-client privilege can become hazy. It must be proven that any advise, or information given by the counsel was done so in a legal capacity to be considered subject to attorney-client privilege rules. Any advice that is not regarded as preparing for litigation is generally not subject to privilege.
Conflict of Interest
In-house investigators representing their employer in discrimination investigations, and other workplace investigations, must disclose who they are serving. It can be difficult to decipher what conflicts of interest or bias exists within such investigations. It is essential that the investigator notes who they work for and that they are not in an advocacy role in such investigations. For example, if in-house counsel is investigating a claim of workplace harassment, it must be noted that they represent the employer are serving the role of a fact finder. Conflicts of interest must be explained, in such situations. For these reasons, it is generally preferable to use a neutral third party investigator to conduct workplace investigations.
The topics of ethics in workplace investigations is a lengthy one and can be discussed from many different angles. Whether the counsel in question is a third-party or an in-house investigator, it is crucial for fair and ethical investigating and reporting.