Five "tripping Points" in Workplace Investigations

• Publication year: 2016
• Author: By Irma Rodriguez Moisa and Marilou Mirkovich*

Five "Tripping Points" in Workplace Investigations

By Irma Rodriguez Moisa and Marilou Mirkovich*

Malcolm Gladwell's The Tipping Point¹ identifies common factors and patterns that determine whether a trend will "tip" into mainstream popularity. Conversely, in workplace investigations, certain issues repeatedly create stumbling blocks for an effective investigation. For the purpose of this article, and with a nod to Mr. Gladwell, such stumbling blocks are labeled "tripping points." This article focuses on five workplace investigation tripping points and provides guidance for successful navigation of them.

TRIPPING POINT NO. 1. FAILURE TO HAVE A LIMITED LEGAL SERVICES AGREEMENT WITH OUTSIDE ATTORNEY INVESTIGATORS

From time to time, a public sector employer will choose to engage an attorney from outside the organization to conduct an investigation. It is common to retain that investigator using a purchase order, a vendor agreement, or a general legal services agreement. This practice presents potential problems, such as confusion regarding the investigator's role and responsibilities; expanding investigation scope, and conflicts regarding payment for post-investigation services. The following is a discussion of those potential problems.

A. Confusion Regarding the Attorney Investigator's Role and Responsibilities

If no limited legal services agreement² exists with the outside attorney investigator, it is often unclear whether the attorney investigator's role is to provide factual findings, legal conclusions and/or recommendations. The failure to agree upon these issues in writing before the investigation begins can lead to a disconnect between the investigative report that the employer envisioned and the investigative report that the attorney investigator provides. Furthermore, negative inferences can be drawn if the employer and the attorney investigator make an agreement on such issues after the investigation has begun. For example, if the employer and the attorney investigator agree that the investigator will make factual findings only after the investigation has begun, should litigation result, the investigator will be questioned about whether this agreement was made only after the investigation began as a mechanism to avoid memorializing potential adverse legal conclusions.

Similarly, without written specification of the respective roles of the employer's employment counsel and the attorney investigator, the employer often seeks legal advice from the attorney investigator. For example, the employer often seeks advice on issues such as the content of notifications to witnesses (including respondents and complaining parties); admonishments (confidentiality, Upjohn,³ Lybarger/Spielbauer,⁴ the Public Safety Officers Procedural Bill of Rights Act,⁵ and the Firefighters Procedural Bill of Rights Act⁶) and interim actions. At a minimum, two potential problems result if the attorney investigator provides such advice. First, the provision of such advice diminishes the attorney investigator's appearance as impartial. Second, if the investigation is being conducted under the attorney-client privilege and a decision is made to waive the privilege to use the investigation in the employer's litigation defense or in support of disciplinary action, that decision may also waive the privilege as to such legal advice.⁷

Additionally, in the absence of a limited legal services agreement, misunderstanding regarding key terms can occur. Areas where such misunderstandings frequently occur are as follows: whether an investigation is being conducted under the attorney-client and attorney work-product privileges; with whom can information discovered during the investigation process be shared; and who shall receive the investigative report. Not surprisingly, if litigation results from the complaints under investigation, confusion on such key terms does not present an image of competency and may create unintended problems - inadvertent attorney-client privilege waiver and a perception that the investigator is the employer's advisor and not impartial.

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B. Expanding Investigation Scope

In the absence of a defined written scope, conflict can occur not only over what the investigator was specifically charged with investigating, but also regarding whether additional complaints received by an investigator should be included in that investigation. In that regard, if the investigator does not include such complaints in the investigation and litigation occurs, the investigator's decision not to investigate such matters will be challenged, and the investigator will have no documentary evidence to support the position that such claims were not within the scope of the investigation. On the other hand, if the investigator simply proceeds to investigate the additional complaints other problems can result: investigation costs will increase, the length of the investigation will increase, irrelevant or unnecessary information may be memorialized, and there may be duplicative and overlapping investigation of issues.

C. Conflicts Regarding Post-Investigation Services

In the absence of a limited legal services agreement, often no agreement exists for compensation of the investigator after completion and delivery of the report. Frequently, the completion and delivery of the report does not mark the end of the investigator's services. For example, if litigation results, the investigator and the investigator's files will likely be subpoenaed. Not surprisingly, the investigator will want compensation for responding to the subpoena and for being deposed. It is also likely that the investigator will desire legal representation for that deposition. Entering into an agreement to compensate the investigator for such services after litigation has begun underscores the argument that because the employer is paying for the investigator's testimony, the investigator is not truly independent or impartial.

A limited services agreement . . . should clearly state the scope of the investigation and that the employer is engaging the investigator to perform legal services as a fact-finder pertaining to legal advice.

A limited services agreement will assist in reducing these problems. Such an agreement should clearly state the scope of the investigation and that the employer is engaging the investigator to perform legal services as a fact-finder pertaining to legal advice. The court in United States v. Rowe⁸ emphasized that "fact-finding which pertains to legal advice counts as 'professional legal services.'" This language is also necessary to comply with California Business and Professions Code⁹ and may assist in preserving the attorney-client privilege and attorney work-product doctrine. Similarly, addressing compensation and representation for post-investigation services reduces the resonance of the argument that the employer has purchased the investigator's testimony.

TRIPPING POINT NO. 2. IMPROPER CONFIDENTIALITY ADMONISHMENTS

To protect parties' privacy and the integrity of an investigation, employers often instruct witnesses, including parties to the investigation, to maintain confidentiality. That practice was upended by the California Public Employment Relations Board ("PERB") in Perez v. Los Angeles Community College District.¹⁰ In Perez, PERB decided the district's directive to an employee not to contact faculty, staff, or students while on paid administrative leave was unlawful because it interfered with the employee's right to representation. In essence, the Perez decision follows the National Labor Relations Board's ("NLRB") prior decision in Banner Estrella Medical Center¹¹ that found a "boilerplate" directive prohibiting communication with other employees during an investigation interfered with protected rights. In Banner, the NLRB determined that confidentiality admonishments are appropriate on a case-by-case basis and established the following factors to evaluate whether...