Can a “Privileged” Investigation also be “Independent?”

I was  honored to speak at the Colorado Bar Association’s Employment Law Section luncheon on February 18, 2016. A question was raised there that has been replaying in my head: “How can you claim that a privileged investigation is also independent?” To stop the replaying of actual or imagined dialogue in my head, I offer this post. My revised short answer is, “Pretty easily.” Before expanding on that I’ll summarize a couple points from the presentation to provide context. Absolutes are dangerous, but context always matters.

The Investigation Expectation – Workplace investigations are now inextricably intertwined with an employer’s exercise of reasonable care in response to the identification of discriminatory conduct, and an expanding host of other potential liabilities and compliance expectations.

Fundamentals – Few rules define the investigation mandate. An appropriate investigation must be prompt, impartial, and thorough. While timeliness and (more so) thoroughness come up, investigations are most often criticized for alleged bias or a lack of impartiality. “Objective,” “neutral,” and “independent” are other synonyms of “impartial” commonly used to describe the expectation. Here I note a personal preference for descriptors other than “independent,” which I like to reserve for those agencies that possess independent authority to investigate employers, such as the EEOC, NLRB, OFCCP or various state and federal law enforcement agencies. The distinction supports an important teaching point for me – in three parts.

1. Employers engage the investigation. It is the employer’s responsibility to engage an appropriate investigation no matter who investigates (inside or outside investigators in their many forms). Successful, effective investigations get to the truth of the matter at issue; and also demonstrate a clear understanding of the scope of issues for investigation.

2. Investigation scope is the employer’s prerogative.

3. Within the defined scope of issues for investigation it is my job as investigator – my professional responsibility – to demonstrate an investigation that is prompt, impartial and thorough – and meeting that end requires employer cooperation; reasonable access to the employer’s people and information. This is how “independence” is reasonably understood in this investigation context. In other words, the neutral workplace investigator does not have independent authority to investigate outside the scope established by the engaging employer, but does have an obligation to demonstrate a thorough, adequate, and otherwise reasonable (“independent”) investigation within that scope.

Attorney-Client Privilege and the Attorney Work Product Doctrine – Employment attorneys provide employers with legal advice, as well “best practices” counsel. One primary purpose of investigation interviews and investigation reports is to enable the provision of confidential legal advice to an employer-client by its attorneys. Two recent decisions from influential federal circuits underscore that, consistent with “the investigation expectation,” regardless of the absence of legal counsel in a fact-finding investigation or a dual purpose of business advice, if the investigation helps the lawyer give legal advice then the privilege applies. The second decision also explains that attorney work product protections that apply to documents prepared “in anticipation of litigation” can relate to the prospect of litigation, too, rather than exclusively active or threatened (by demand letter) litigation. See In Re Kellogg Brown & Root, Inc. et al., Petitioners, 756 F.3d 754 (D.C. Cir. 2014) and 796 F.3d. 137 (D.C. Cir. 2015); In Re General Motors LLC Ignition Switch Litigation, 80 F.Supp. 3d 521 (S.D.N.Y. 2015).

The point here is that it is only prudent to take steps at the inception of an investigation to preserve these protections. It does not matter that in the vast majority of cases the employer will waive the protection by using the investigation to demonstrate its exercise of reasonable care. Nothing about properly preserving these protections at inception of the investigation corrupts an investigator’s impartiality or independence, if you prefer. To suggest that just because an attorney directs the performance of an investigation consistent with privilege or work product protections that somehow equates to orchestration of the entire process is unpersuasive.

 

Good Will Hunting and Workplace Investigations: Vigilance Against Bias

I like to ask the “favorite movie” question and Good Will Hunting is a popular pick in my experience. To Good Will Hunting fans I sometimes present a “did you notice” question.

It starts with recollection of a favorite scene in the movie – when Will (Matt Damon) steps into Chuck’s (Ben Affleck’s) conversation at a bar with a Harvard Grad student intent on sabotaging Chuck’s attempt to meet two “Harvard hunnies” (Minnie Driver and friend). Will proceeds to dress him down as a parrot of published works on American history without an original thought of his own. Juxtapose that scene with Sean (Robin Williams) and Will’s “Taster’s Choice moment between guys” on a bench overlooking a pond. Will aggravates Sean to violence in their previous meeting, but now Sean explains his calm after realizing that Will doesn’t know what he is talking about, even if Will’s genius enables his command of any subject still short of personal experience: “I can’t learn anything from you that I can’t read in a [expletive] book.” It’s the same valid criticism that Will levels at the Harvard Grad student and provides a lesson in humility. Discovering the hypocrisy of our own thinking or behavior can make for profound revelation. Ideally, it inspires responsible cautiousness and self-examination in the future. That life lesson is a great tool for workplace and school investigators – and managers and executives too.

Conducting workplace investigations demands humility more than self-assurance. The most effective and reliable investigators perceive themselves small rather than big.

Starting from a stance of “I don’t know” helps avoid assumptions and drives the initial, primary goal of hearing each side of the story before reaching conclusions. From there, acknowledge your susceptibility to biases. Biases derive from implicit reliance on stereotypes born from individual life experiences, environment, and culture. Every point of view is a view from a point and no person escapes the human condition. Any absolute denial of personal prejudice, conscious or unconscious, is at best unpersuasive and at worst dishonest.

The on-going study of bias is fascinating. The multiple forms of cognitive bias, like Confirmation Bias and Halo Effect, as well as Implicit Association Tests and Heuristics are engrossing, even to laymen – at least this layman. The reliability of implicit bias evidence in employment discrimination litigation is far from settled with strong opinions on both sides of the issue and separate legal-eagle debate over the centrality of causation versus discriminatory intent for disparate treatment claims. In any case, the good news is that social science suggests that individuals can control even implicit biases with various forms of conscious effort – including articulating opinions or decisions in writing (my personal favorite). Self-awareness and recognition of our essential subjectivity supports vigilance against bias in the workplace, investigations, and in life.

“Neutral” Investigators Should Disclose Their Responsibility to Resolve Conflict: Fact-finding versus Fact-gathering

Workplace and school investigators often begin investigation interviews by describing their role as a “neutral and objective fact-finder.” The primary point to make is that the investigator is not biased. More than anything, objective and systematic interview process demonstrates the investigator’s intent to first understand each participant’s side of the story. That’s a good thing, but it is not the whole story either. As conflicting information may develop from different sources, so does the investigator’s obligation to resolve those conflicts. (I like to say that the degree of obligation to resolve conflict varies directly with the severity of the alleged misconduct.)

Investigations charge the investigator with evaluating all the evidence toward reasoned findings that evaluate conflicting information around suspected or alleged misconduct. The “whole story” is that, strive as the investigator should to understand individual perspectives during early fact-gathering, making findings of fact to conclude the process often means that someone’s version of events is deemed most persuasive. Sometimes, though, an investigator or manager is engaged to conduct “fact gathering” only. There, conclusions as to whether it appears “more like than not” that alleged misconduct occurred are omitted. Credibility analysis and “weighing” of the evidence, too, may be excluded.

Whether the investigator will make findings of fact versus simply gather facts by taking witness statements and collecting relevant evidence is a huge distinction – and one that merits attention in the interview context as part of the investigator’s introductory comments. (Confidentiality expectations, as may be applicable, and retaliation prohibitions are other common “ground rules.”) My suggestion is to clarify the ultimate “fact-finding” purpose when addressing an expectation that participating employees be truthful. Where authentic “he-said, she-said” scenarios exists, the only thing an investigator can be certain of is that someone is not telling the truth. That backdrop helps explain an expectation of truthfulness in investigation interviews and allows the investigator to impart that he or she has a responsibility to resolve conflict in good faith after properly evaluating the evidence.

Caselaw support for an employer’s obligation to resolve conflicting employee accounts of misconduct through a thorough investigation that supports good-faith decision-making comes from a recent California Court of Appeals decision. (See Mendoza v. Western Medical Center of Santa Ana, 222 Cal. App. 4th 1334, 166 Cal. Rptr. 3d 720 (2014).) In Mendoza, the court’s identification of investigation defects, like interviewing the complainant and respondent simultaneously with an inexperienced investigator, underscores that workplace investigations are considered integral to an employer’s exercise of reasonable care. A snippet from oral argument included in the decision makes the central point addressed here (Mendoza at 14, n. 4.):

“… defense counsel asked (perhaps rhetorically) just what employers were expected to do       when faced with a scenario in which two employees provide conflicting accounts of inappropriate conduct.

    “Our answer is simple: employers should conduct a thorough investigation and make a good faith decision based on the results of the investigation. Here, the jury found this did not occur.”

Importantly, too, don’t underestimate the value of fact gathering alone. Skilled fact gathering can enable your most trusted counsel to assess the matter without getting entrenched in an investigation process directly.  The necessity of a formal investigation (with “fact-finding” and all) is not always clear at the onset. Initial fact gathering is always a precursor and might reveal that a formal investigation is not necessary. Investigations are inherently disruptive. Skilled investigators make investigations as least disruptive as possible. HR best practice is to avoid unnecessary investigations. When investigations are necessary, adequate investigation demands taking responsibility to resolve conflicting information in good faith.