Companies typically have three options when it comes to choosing an investigator: 1) an internal professional, usually someone in Human Resources or Audit, 2) a lawyer, including both in-house and outside counsel, and 3) an independent, external investigator. While there is no right or wrong answer, consider the following for each:
Internal Professional. The benefits to using an internal professional are immediate availability, familiarity with company personnel and processes, and cost (none!). However, keep in mind that it might put the professional in an awkward position if he or she is asked to investigate a higher-level employee, like an executive, or someone in his or her own department. It might also give rise to claims of bias. In addition, if litigation is likely, you should consider whether the individual will make a good witness.
Company Lawyer. While it’s certainly beneficial to involve someone with knowledge of relevant law, using the company’s lawyer to conduct an investigation may be problematic if the company intends to rely on the same lawyer to provide legal advice to management on the same issue. The potential for allegations of bias, the threat to the attorney-client privilege, and the possibility of the lawyer being called as a witness and therefore conflicted out of representing the company in litigation are factors to consider.
External Investigator. An external investigator is a good choice if internal professionals don’t have sufficient time to spare for the investigation or if the investigation is complex, likely to lead to litigation, or involves high-level employees or employees in sensitive positions. Because such investigators are neutral fact-finders, they are less susceptible to claims of bias. In addition, most external investigators are well trained and comfortable testifying, if necessary.
According to the EEOC, internal investigations should be prompt, thorough, and impartial. Regardless of whom you select to conduct an investigation, at a minimum, you should ensure that the individual meets these requirements.