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Hiring a Florida Employment Lawyer to Conduct Workplace Investigations

Feb 03, 2023

There are several reasons to hire an attorney to conduct a workplace investigation into discrimination, harassment, retaliation claims, as opposed to a private investigator, external HR Consultant or investigator who is not a lawyer. The main reasons are:

  1. Attorney client privilege
  2. Lawyers are one of the permitted groups of people who are permitted to investigate
  3. Lawyers are better prepared to testify at trial should the claim proceed to litigation.

The benefits of hiring an external attorney as a neutral workplace investigator are discussed in detail below.

Lawyers & Attorney/Client Privilege: It may be necessary to hire a lawyer as opposed to a non-attorney investigator when hiring someone to conduct a workplace investigation for your company. If hiring a lawyer, the company can assert the attorney client privilege, which may not be an option when hiring a non-lawyer professional investigator. This is important, as the discussions, outcome and recommendations may be asserted as privileged and confidential if an external attorney is performing the investigation. If the company hires a non-attorney investigator or HR consultant, without more, there is no attorney-client privilege, and the communications may not be protected.

Only Certain People Are Permitted to Conduct Investigations in Order for The Investigation to Be Proper

There are only certain people can conduct workplace investigations. 

  1. External licensed private investigator
  2. External attorney
  3. Internal HR- employment by your company.

Independent Human Resources consultants who are not employed by the company, are not lawyers, and who are not licensed private investigators should not be conducting workplace investigations (in most states). 

A workplace investigation is critical to the employer’s ability to argue it took the appropriate steps to remedy the inappropriate conduct- its important that employers get this correct.

The Quality of a workplace investigation has important ramifications for litigation outcomes

An employer can be held liable for sexual harassment by a supervisor unless it can prove it exercised care to prevent harassment and took steps to investigate complaints. The workplace investigation needs to be done properly, or else it may face legal challenges in court, thereby removing the ability of the employer to effectively assert its defense. In the event the investigation is challenged down the road, the investigator may be required to testify at a deposition or at trial before a jury. If an external independent attorney performed the investigation, there is a high probability he/she is familiar with the litigation process, including the deposition and trial procedure. Having someone who is knowledgeable and has actual hands on experience in these areas can have a substantial effect on the outcome of the challenged investigation.

Note that the company’s general counsel or outside employment lawyer should not be handling the investigation. Investigation may not be deemed impartial if company lawyer handles investigation by company. If company produces the report to show it acted appropriately, general lawyer could be called as a witness.

Karly Wannos, Esq., of The Wannos Law Firm, PA received a certificate from the Association of Workplace Investigators to perform workplace investigations in Florida. Contact the Wannos Law Firm HERE.

Contact Karly Wannos at The Wannos Law Firm, PA Here.

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Disclaimer: The information on this website is for educational purposes only. The information does not constitute legal advice, and does not create an attorney client relationship with Karly Wannos, The Wannos Law Firm, P.A. or any other attorney employed by the firm. Karly Wannos is licensed to practice law in Florida only, and the information presented on this channel applies to Florida and Federal law only and is not otherwise state specific. Please consult with an attorney before making any important business related decisions. The contents of this post are owned by Karly Wannos, and cannot be duplicated or replicated without her express written permission. May be deemed an attorney advertisement.


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