The National Football League ("NFL") has hired an outside investigator to handle the complaint made by Jonathan Martin, an offensive lineman for the Miami Dolphins. The national news media cannot seem to get enough of this story, and the coverage has been relentless. The media, however, seems to have focused on the bullying angle. But for some of us, based on the reports, it looks like there was more than just bullying going on. If the allegations are true there may be violations of the league's workplace harassment policy as well. Given the dynamics here, and the high profile nature of the situation, we think it makes a lot of sense for the NFL (and the union) to bring in an investigator from the outside.
An employer's investigation of workplace harassment is often critical to its subsequent defense of any related lawsuits. A good investigation that results in appropriate corrective action typically means a good defense to a claim of workplace harassment. The law encourages employers to be proactive and promptly investigate incidents that occur and rewards employers who take those steps.
But who should conduct the investigation?
We often talk about this issue with our clients: who is the best person to investigate a complaint of workplace harassment? The answer is, it depends. In many instances, a fresh perspective is helpful. In others, using an investigator familiar with the players may be better.
Will this investigator be a good witness if necessary? As noted above, the investigation itself may be an issue in any subsequent litigation and the investigator may become a witness, so pick a good one!
Will the investigator be able to represent the employer if there is a lawsuit? In some instances, counsel who serves as the investigator may not be able to defend the case.
Is this a particularly difficult situation? Outside investigators often have experience in handling difficult cases, including cases that involve employees at the upper levels of the organization.
Is there an allegation that involves the Human Resources Department?
Evidence created by the investigation may be discoverable in subsequent litigation.
The use of an outside investigator may strengthen the appearance of impartiality.
Also keep in mind that the investigator must be impartial (and viewed as impartial) to be effective, and must be familiar with your policies. The investigator must also be a good communicator, because educating those involved during the process is important. You may even want to consider using two investigators in appropriate cases.
As the NFL situation indicates, picking an investigator is important, and there are certainly times when it is in an employer's best interest to use an investigator from outside of the organization.