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Generally, situations that may lead to employee discipline or discharge call for some degree of
investigation, unless the employee confesses or is caught red-handed.
The employee may be terminable at will, but for practical
and legal reasons it is often preferable to be able to
support a termination decision with facts obtained through a
reasonable investigation.
Prompt and thorough investigations are also critical to
responding to harassment allegations. They can be the single
most important determinant of an employer's liability in
many such cases.
An outside attorney's role in such investigations will
depend on the circumstances requiring investigation and the
employer's internal resources.
Some employers may have the in-house ability to conduct
investigations that will withstand legal scrutiny without
any outside legal guidance.
Many others, however, may have personnel able to conduct
investigations who would benefit greatly from legal
consultation prior to and/or in the course of the
investigation and related decision-making.
With serious allegations against an employee and/or a high
risk of legal challenge to the employment decision that will
result
from an investigation, an employer may wish to employ an
attorney to conduct the investigation directly. However, it
can be problematic ethically if the employer uses its
regular attorney and later desires to utilize the attorney's
services to defend related legal claims.
The attorneys of Harris Dowell Fisher & Harris, L.C. are
all experienced in assisting employers with employee
misconduct investigations. We know what facts to
investigate, how to most effectively conduct investigations,
and the potential legal pitfalls of inadequate
investigation. We frequently provide
guidance to employers conducting their own employee
misconduct investigations. We also are available to
directly conduct such investigations where other counsel is
likely to be relied upon for defense of any related claims.
Contact us to discuss how
we may best assist you in this regard.
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