Public Law

Public Law Journal: Winter 2016, Vol. 39, No. 1

Five "Tripping Points" in Workplace Investigations

By Irma Rodriguez Moisa and Marilou Mirkovich*

Malcolm Gladwell’s The Tipping Point1 identifies common factors and patterns that determine whether a trend will "tip" into mainstream popularity. Conversely, in workplace investigations, certain issues repeatedly create stumbling blocks for an effective investigation. For the purpose of this article, and with a nod to Mr. Gladwell, such stumbling blocks are labeled "tripping points." This article focuses on five workplace investigation tripping points and provides guidance for successful navigation of them.

TRIPPING POINT NO. 1. FAILURE TO HAVE A LIMITED LEGAL SERVICES AGREEMENT WITH OUTSIDE ATTORNEY INVESTIGATORS

From time to time, a public sector employer will choose to engage an attorney from outside the organization to conduct an investigation. It is common to retain that investigator using a purchase order, a vendor agreement, or a general legal services agreement. This practice presents potential problems, such as confusion regarding the investigator’s role and responsibilities; expanding investigation scope, and conflicts regarding payment for post-investigation services. The following is a discussion of those potential problems.

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