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.

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