PART 2: Employer Internal Investigations

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PART 2: Employer Internal Investigations

An employer can be held liable for sexual harassment by a supervisor unless the employer can prove that it exercised care to prevent harassment and took steps to investigate complaints.  Once reported, an internal investigation can make or break the employer’s defenses for litigation.  In fact, a thorough, unbiased investigation can be one of the best defenses.

Typically, the HR department gets the complaint and then conducts the workplace investigation, sometimes led by in-house counsel.  Our last update discussed why attorney-client privilege may be useful in conducting the investigation.  But when the investigation is done internally by HR or business counsel, the investigation is unlikely to be privileged or deemed confidential.

This issue of privilege is a hot topic at the moment as the Supreme Court of the United States (“SCOTUS”) currently has a case before where the privilege is in question because the outside attorneys leading the investigation also prepare tax returns for the employer.  SCOTUS must decide whether a communication involving both legal and nonlegal advice is protected by attorney-client privilege, if obtaining or providing legal advice was one of the significant purposes behind the communication.  The SCOTUS case involved a grand jury subpoena where the government argued that nothing was confidential because in addition to conducting the investigation, the law firm prepared tax returns for the company and that was a business, not a legal matter.  What?  That’s crazy.  Yet, here we are, waiting for the SCOTUS to rule on whether there is a bright line attorney-client privilege or is it a gray area in each instance.

During workplace investigations, there is no hard rule that something can be kept confidential, but you can take steps not to identify witnesses by name and to conduct the investigation as a legal (not a business) matter.  If the investigation or its findings is shared with another company business team, then keeping it confidential may be difficult. The best move is to have outside counsel do the investigation and report to in-house counsel or a company executive responsible for legal matters.

Epps & Coulson, LLP can help with investigations.  Here at Epps & Coulson, LLP we regularly help employers investigate internal activities and decide what to do.  Please feel free to contact Dawn at: for any questions.

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is likely considered advertising.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.

Attorneys admitted to practice in California, New York, Colorado, Texas, and Oregon