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Considerations in Selecting an Investigator

A threshold issue in any internal investigation is the selection of an investigator.  A number of considerations will guide a company’s decision.

Internal or External Investigator

There are several factors to consider in selecting an investigator, and practical considerations frequently indicate that the investigation be conducted by an internal investigator.  However, employers often opt to engage external investigators for a variety of reasons, including high stakes or highly sensitive matters, investigations of a high-level officer, or investigations of an employee in the internal investigator’s chain of command.

If an external investigator is selected, the company should provide the investigator access to material company policies.  It may be appropriate to identify an independent company representative to assist the investigator in gaining access to personnel files and other documents and information needed to conduct the investigation.  In some cases, a special committee composed of subject matter experts from relevant areas of the company may be desirable to assist in the investigation.

Ability to Testify

Another consideration is whether the investigator will be available to the company to testify in disciplinary proceedings, arbitrations, and litigation.  The company should discuss this issue with the investigator at the onset to confirm that the investigator has the requisite experience, capability, and willingness to testify in such proceedings.

Special Considerations for Attorney-Investigators

Other considerations apply when the investigator is an attorney.  For example, if an attorney conducts the investigation, the company should consider that in future proceedings, the investigator may be a witness.  Additionally, in certain circumstances, the factual investigation and findings of an outside attorney may be subject to disclosure in future proceedings, even if the company takes the initial position that the investigator’s work is subject to the attorney-client communication privilege or the attorney work-product doctrine.

Ultimately, several factors affect a company’s decision in selecting an investigator.  The decision should be given significant weight, as it can impact the effectiveness of the investigation as a whole.

Jackson Lewis P.C. © 2019

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About this Author

Patrick Rocks, Labor Attorney, Jackson Lewis Law Firm
Principal

Patrick Rocks is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. He served as the General Counsel to the Chicago Board of Education, the third largest school district in the country, from 2005 to 2012.

During his tenure at the Chicago Board of Education, Mr. Rocks counseled and represented the Board and its senior management in a wide range of matters. He also managed the Board’s Department of Law which includes 45 attorneys and the Board’s risk management, records retention, internal investigations and insurance programs.

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312-803-2555
Kristin L. Bauer, Jackson Lewis, employment agreements lawyer, non solicitation issues attorney
Principal

Kristin L. Bauer is a Principal in the Dallas, Texas, office of Jackson Lewis P.C. She represents management exclusively in workplace law and related litigation.

In addition to handling an active employment litigation docket, Ms. Bauer counsels management on preventive strategies, including termination decisions, investigations, employment agreements, non-compete and non-solicitation issues, wage and hour laws, policies and handbooks, and other issues affecting the workplace. She also provides advice and counsel to employers on the numerous laws touching ill and injured workers, including the ADA, the FMLA, and related state laws, and strategies to manage those risks. Ms. Bauer frequently speaks on a number of employment-related topics.

(214) 520-2400