Law and Order: EEO – When Workplace and Criminal Investigations Collide

The investigation began typically enough. The allegations included inappropriate comments, unwanted texts, and a pattern of behavior targeting newer employees. Simple enough, until one witness described how the respondent followed her to her car, grabbed her arm with enough force to leave a bruise, and forcibly kissed her. My stomach dropped. Not because of the conduct, but because I knew this was no longer just a workplace policy matter. It was potentially a criminal assault, and that changed everything.

Workplace investigations do not handle the criminal side – it is not our lane. However, what we do in the moments after we discover a criminal component can make or break the investigation for us and law enforcement. Attorney-investigators can make costly mistakes when confronted with this situation, either pausing their investigation when they do not need to, or proceeding without considering how their process may unduly interfere with a criminal case. Either choice can cause serious issues.

So, what do you do when a criminal investigation suddenly looms over your seemingly routine workplace investigation? How do you simultaneously protect your investigation and those involved, preserve evidence, and stay in your lane?

There’s a Contemporaneous Criminal Investigation – What Are Your First Steps as a Workplace Investigator?

As soon as you become aware there is a criminal investigation related to your workplace investigation, communication becomes paramount. While communication is always important in workplace investigations, an overlapping criminal investigation changes the investigator’s communication options.

Here, the investigator should immediately reach out to the detectives assigned to the criminal matter.  There are two reasons for this: one, to ensure you do not trample on the detective’s investigation; and, two, to potentially receive or share information.

First, it is imperative not to inadvertently interfere with the criminal investigation. For example, detectives may be doing pretext calls with the subject as part of their investigation. In that case, you need to coordinate the timing of your interview of the respondent to ensure you do not tip the respondent off about the nature of the reported concerns.

Second, communicating with law enforcement may result in you obtaining critical information for your investigation. In our experience, law enforcements’ response to an investigator’s outreach varies vastly.  In some cases, they do not respond at all. In other cases, they provide limited to full information.  Indeed, this information could be key, in that law enforcement has access to information through warrants, subpoenas, and other tools that we as investigators do not have. If they are willing to share with the investigator, their input could make a big difference.

Regardless of law enforcement’s participation, it is also critical to document outreach efforts to the detectives for a couple of reasons. One, if they do not respond to your outreach, you can solidly defend your attempts to acquire additional information, which will strengthen your methodology section and provide a more defensible product. Two, sometimes perseverance pays off, and the squeaky wheel does, in fact, get the grease. You never know if a different day or a different detective will provide that piece of information that assists your finding.

If you are an external investigator, closely consult with your client throughout this process to ensure you are appropriately protecting attorney-client privilege, or they may wish to waive privilege in some capacity for the benefit of exchanging valuable information. Each situation will be different, so it is critical for investigators to have permission for the actions they take, but to also keep the client updated about any exclusive information the detectives possess. Remember, your client is also balancing their responsibilities as an employer with the need to properly respond to workplace concerns.

Different Burdens, Different Responsibilities 

One of the main differences between a workplace investigation and a criminal investigation is the burden of proof. Workplace investigations make factual findings by a preponderance of the evidence, meaning a more-likely-than-not standard. In contrast, criminal cases require a beyond a reasonable doubt burden of proof – essentially the closest one can get to “the truth.” The difference in the burden of proof reasonably aligns with the different nature of the investigative issues, and potential outcome. A criminal conviction can cost someone their rights, their freedom, or in the most extreme cases, their life. While workplace investigations involve serious, and sometimes criminal activity, the employer does not mete out judgment severe enough to warrant the same burden as the criminal justice system.

Here's something that trips people up: you can find that workplace misconduct did happen, and a prosecutor can look at the exact same evidence and decide there is not enough for criminal charges. That is not a contradiction. It is two different systems using two very different measuring sticks. In a workplace investigation, you are asking, ”Is it more likely than not that this happened?” That is the preponderance of the evidence standard, and it is a lower bar. In the criminal arena, prosecutors have to clear a much higher bar: beyond a reasonable doubt. Same facts, same witnesses, same documents, but two completely different outcomes are not only possible, they are common.

Similarly, this different burden of proof relates to another responsibility for workplace investigators: timeliness. Workplace investigations must be thorough and timely. While the determination of timeliness is not a bright line test, workplace investigations must be timely to withstand scrutiny. Criminal investigations, however, suffer no such restriction. Again, this is reasonable given the differences in information needed to make decisions in each case. Criminal cases, where the stakes are much higher, may take longer to compile evidence, locate and interview witnesses, and analyze additional information, whereas employers benefit from a timely investigation, so they can make employment decisions and continue functioning. Importantly, workplace investigators should not delay their investigation to match pace with the criminal investigation. Delay too long and your client may lose a defensible investigation. While it can be tempting to wait to access the trove of information detectives possess, it ultimately does not weigh in the investigator’s, or the employer’s, favor to do so.

Additional Considerations for Investigators

Whenever workplace and criminal misconduct intersect, the investigator should discuss corporate Miranda warnings, also known as Upjohn warnings, with their client. If there is potential for a conflict of interest between the company and the interviewed employee, the attorney responsible for the investigation needs to clarify their role, as well as the limits of the attorney-client privilege. Specifically, the warning must provide the following information: (1) the attorney represents the organization, not the individual employee; (2) the communications with the attorney are privileged, but the organization holds the privilege and can choose to waive it without the employee’s permission; and, (3) the interview must be kept confidentially by the employee.

Takeaways

Ultimately, communication is paramount, and collaboration, when possible, can be enormously beneficial. While detectives may elect to not share their information, it is important that workplace investigators remember their separate duties and burdens, and avoid trampling on the criminal investigation. Keeping your client informed, ensuring their duties as employers are satisfied, and making material efforts to locate relevant information will help put you at ease the next time your workplace issue crosses over into a criminal jurisdiction.