Who Should Investigate a Workplace Complaint? Choosing the Right Investigator for Workplace Investigations
“Let HR handle it.”
When an employee raises a complaint involving harassment, discrimination, retaliation, or other workplace misconduct, that is often an employer’s first response. And in many cases, it is the right one. HR knows the company, understands its policies, and can often begin an investigation quickly.
But not every workplace investigation should stay within HR.
What if the complaint involves a senior executive? What if HR itself is implicated? What if the employee has already retained counsel, or litigation appears likely?
At that point, the first question may not be how to investigate, but who should conduct the investigation.
The investigator’s independence, experience, and relationship to the individuals involved can affect the credibility of the investigation. And if the dispute later develops into litigation or an agency proceeding, the employer may have to defend not only what it concluded, but also how the workplace investigation was conducted in the first place.
If your company is responding to an employee complaint involving harassment, discrimination, retaliation, executive misconduct, or another sensitive workplace issue, ILS can assist in evaluating and conducting workplace investigations. Contact our employment attorneys at contact@consultils.com.
When Should HR Handle a Workplace Investigation?
For routine employee disputes, policy violations, and many workplace complaints, a trained HR professional may be well positioned to conduct the investigation.
The key word, however, is trained.
A workplace investigation involves more than interviewing the complainant and the accused. Depending on the circumstances, an investigator may need to define the scope of the investigation, identify and preserve relevant evidence, determine the appropriate order of witness interviews, evaluate conflicting accounts, assess credibility, and properly document the process and findings.
Employers relying on HR to conduct workplace investigations should therefore consider several factors:
Does the investigator have appropriate training and experience? Holding an HR title does not automatically make someone an experienced workplace investigator. Employers should have consistent investigation procedures and provide appropriate training to employees responsible for conducting investigations.
Is the investigation prompt and thorough? Unnecessary delays, overlooked witnesses, or missing evidence can undermine the credibility of the investigation.
Can the company later explain what it did and why? If a dispute escalates, the employer should be able to show how it responded to the complaint, what information it considered, and how it reached its conclusions.
Not every workplace complaint requires outside counsel. For many routine matters, an effective internal HR investigation may be entirely appropriate. The important question is whether the person assigned to investigate has the experience, independence, and resources necessary for the particular matter.
When Should a Workplace Investigation Move Outside HR?
The analysis changes when the complaint involves someone with significant authority within the organization.
A complaint against a frontline supervisor is different from a complaint against the CEO. If the HR professional conducting the investigation reports directly to the accused executive, depends on that executive for performance reviews, or otherwise sits within the executive’s chain of authority, the investigation may face questions about independence—even if the investigator acts in good faith.
Employers should take a closer look at the investigation structure when:
the accused is a senior executive or other high-level decision-maker;
the complaint implicates HR or members of the legal department;
the employee has retained counsel or litigation appears reasonably likely;
the allegations involve serious harassment, discrimination, retaliation, fraud, or other significant misconduct; or
the matter may attract board, regulatory, or public attention.
In these situations, the issue is not necessarily whether HR is capable of conducting the investigation. The question is whether an internal investigation will be sufficiently independent and credible if someone later challenges the process.
If litigation follows, an employee’s attorney may scrutinize not only the findings, but also who conducted the investigation, who that person reported to, and whether the investigator had any actual or perceived conflict of interest.
Should In-House Counsel Conduct Workplace Investigations?
When allegations become more serious, another common response is to turn the matter over to the company’s legal department.
That can make sense, but employers should distinguish between having in-house counsel involved in an investigation and having in-house counsel serve as the investigator.
One important consideration is attorney-client privilege. The fact that an attorney participates in a workplace investigation does not automatically make every interview, note, communication, or investigation report privileged.
If in-house counsel is primarily acting as a fact investigator—interviewing witnesses, gathering information, and making factual findings—the privilege analysis may become more complicated. In addition, an attorney who personally conducts key witness interviews could potentially become a fact witness if the dispute later proceeds to litigation.
Before assigning a workplace investigation to in-house counsel, employers should consider:
Who will conduct the factual investigation and witness interviews?
Who will provide legal advice based on the investigation?
To whom will the findings be reported?
How will investigation materials and any final report be prepared and used?
Having Legal involved in a workplace investigation is not necessarily the same as having Legal conduct the investigation.
Defining those roles at the outset can be far easier than trying to address privilege or witness issues after the investigation is already underway.
When Should an Employer Use Outside Counsel for a Workplace Investigation?
Not every employee complaint requires an outside attorney. But as the seriousness, sensitivity, and legal exposure of a matter increase, an independent investigation may become more important.
Employers should consider involving outside counsel early when a workplace investigation concerns senior leadership, internal conflicts of interest, serious harassment or discrimination allegations, anticipated litigation, or other high-risk issues.
Depending on the circumstances, outside employment counsel may assist with:
evaluating the allegations and potential legal exposure;
defining the appropriate scope and structure of the investigation;
identifying, preserving, and reviewing relevant documents and evidence;
conducting interviews of the complainant, accused, and other witnesses;
evaluating factual findings and related employment-law risks; and
advising the employer on appropriate corrective action and next steps.
Outside counsel can also provide a level of independence that may be difficult to achieve internally, particularly when senior management, HR, or the legal department is directly involved in the allegations.
Employers should still avoid assuming that hiring outside counsel automatically makes a workplace investigation privileged. Whether attorney-client privilege applies can depend on counsel’s role, the purpose of the investigation, and how the investigation and resulting materials are structured and used.
How Should Employers Decide Who Conducts a Workplace Investigation?
Employers do not need to outsource every workplace investigation. A more practical approach is to establish an internal escalation framework for deciding which matters HR can handle and which should be elevated to in-house or outside counsel.
When a complaint comes in, employers should consider:
Who is accused? Is the complaint against an employee, manager, executive, HR professional, or member of the legal department?
How serious are the allegations? A routine workplace dispute may require a very different investigation structure from allegations of harassment, discrimination, retaliation, fraud, or serious misconduct.
How significant is the legal risk? Has the employee retained counsel? Has the employee asserted legal claims? Is litigation or an agency charge reasonably foreseeable?
Can the investigator truly be independent? Does the investigator report to the accused or have another relationship that could create an actual or perceived conflict?
Does the company already have outside investigation resources in place? The middle of a high-stakes employee complaint is rarely the ideal time to begin searching for an experienced workplace investigations attorney.
The goal should not be to create a rule that every investigation goes outside the company. Instead, employers should know when a matter has crossed the line from a routine HR issue into one that warrants a more independent investigation.
Conclusion: Is Your Workplace Investigation Structured to Withstand Scrutiny?
When an employee complaint arrives, the most obvious question is usually: What happened?
But from a risk-management perspective, another question can be just as important: How did the company investigate what happened?
A defensible workplace investigation depends not only on its ultimate findings, but also on the investigator selected, the independence and thoroughness of the process, and the employer’s ability to explain how it reached its conclusions.
For routine employee complaints, a well-developed internal HR investigation process may work effectively. But when allegations involve senior executives, internal conflicts, significant harassment or discrimination claims, or substantial litigation risk, employers should consider early whether a more independent investigation is appropriate.
The goal is not to send every workplace investigation to outside counsel. It is to recognize the matters that should be escalated before the investigation itself creates another problem.
ILS legal team can assist employers with workplace investigations involving harassment, discrimination, retaliation, executive misconduct, and other sensitive workplace matters, including initial risk assessments, investigation planning, document and evidence review, witness interviews, findings analysis, and post-investigation legal advice. For assistance with a workplace investigation, contact the ILS employment team at contact@consultils.com.
Disclaimer: The materials provided on this website are for general informational purposes only and do not, and are not intended to, constitute legal advice. You should not act or refrain from acting based on any information provided here. Please consult with your own legal counsel regarding your specific situation and legal questions.
As Managing Partner at ILS, Richard Liu ranks among the leading U.S. attorneys in corporate, employment, and regulatory law. He is known for crafting legal strategies aligned with clients’ business objectives and advising Fortune 500 companies, startups, and executives on corporate transactions, financing, privacy, and employment matters across the technology, healthcare, and financial sectors.
Before founding ILS, Richard practiced at top defense firms, where he developed a reputation for anticipating risks and designing strategies that balance protection with growth. He has secured favorable outcomes in contract and intellectual property disputes, represented clients in state and federal courts, and is recognized for combining large-firm expertise with boutique-firm agility. Richard is also a frequent speaker at industry and legal conferences.
Email: contact@consultils.com | Phone: 626-344-8949
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