Workplace Investigation Pitfall: Failure to Call an Attorney When One is Needed
One would think that the decision to call an attorney to guide an employee relations issue or a workplace investigation would be made logically and would be dependent upon the seriousness of the issue or complaint. Unfortunately, however, organizations make such decisions based upon a variety of factors unrelated to the seriousness of the issue or complaint. Much of this failure has a great deal to do with failing to recognize the seriousness of the risk itself and concluding that the organization and its staff are fully capable of handling the matter. All too often the result is the “half-baked” investigation. The organization forges ahead on its own, begins the investigation, and somewhere down the line realizes that the matter is well beyond its capabilities. At this point, counsel is called in who reviews and, at times, modifies the strategy and ongoing investigation. The result is internal turmoil and uncertainty as the investigation must, at times, be begun anew, witnesses are interviewed again and erroneous conclusions undone.
Occasionally, the organization fails to call in the attorney for fear of spending money. Here, the clock watching bean counters get in the way and hope that the organization can muddle through the firestorm without the attorney’s clock running. Organizations that have this concern can do one of two things – replace the bean counters or replace their attorneys. Time and again, this type of thinking is penny wise and pound foolish. Hindsight being 20/20 always advises that in the throes of litigation, the organization would have been far better off from both a fee perspective and organizational dynamic perspective calling in the attorneys to assist it in resolving the issue or complaint at the outset.
For more, see my book: Workplace Investigations: Discrimination & Harassment
