By: Karen Carrera
In employment litigation, workplace investigations often become central to the facts and outcomes of a case. However, plaintiffs’ employment attorneys frequently misinterpret the role of the neutral investigator, especially when the investigation is initiated and paid for by the employer. These misunderstandings can lead to misplaced distrust and unrealistic expectations about what workplace investigators can and cannot do. To foster a clearer understanding, it’s important to unpack the key misconceptions and clarify the investigator’s actual role.
Workplace Investigators Are Factfinders, Not Legal Counsel
A common misbelief is that outside investigators are acting as hired legal guns for the defense. This is not the case. Unlike employment attorneys, outside investigators do not provide legal advice or risk assessments. Investigators are not corporate counsel and do not issue opinion letters. Their job is limited to determining whether certain conduct occurred based on a preponderance of the evidence. They are trained to make factual findings, not legal conclusions.
When an employer wants to understand potential liability or risk exposure, they may retain legal counsel to provide an opinion. But if the employer wants to determine whether, for example, discrimination or retaliation occurred, they hire a neutral workplace investigator to conduct a factual inquiry. These are distinct roles with very different objectives and standards of neutrality.
We Investigate the Scope the Employer Assigns—Nothing More
Plaintiffs’ attorneys sometimes demand that all allegations raised in a pending lawsuit be folded into the scope of an ongoing or newly commissioned workplace investigation. This is a misunderstanding of the investigative framework.
Workplace investigators are engaged to answer specific factual questions arising from reported workplace complaints. These typically originate from internal complaints to human resources, a supervisor, a manager, or another leader in the organization. The investigator’s mandate is limited to what the employer assigns—nothing more. Investigators cannot unilaterally expand the scope to include every claim in a lawsuit unless the employer explicitly asks them to do so.
If a lawsuit includes allegations that were never internally reported, they generally fall outside the scope of what an investigator is authorized to examine. This constraint protects both the fairness of the investigation and the legal rights of all involved.
Neutrality Exists Despite Who Pays
Another persistent misconception is that because the employer pays for the investigation, the investigator cannot possibly be neutral. This misunderstanding assumes a flawed premise: that payment creates bias.
In reality, the structure of workplace investigations is similar to that of court-appointed experts or mediators. Someone must fund the work, and in the employment context, it is naturally the employer who does so, especially since federal and state laws require them to investigate complaints promptly and thoroughly. This includes standards set forth in landmark cases like Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, as well as guidance from the EEOC and California’s Civil Rights Department (formerly DFEH).
Professional investigators take neutrality seriously. Many belong to the Association of Workplace Investigators (AWI), a professional organization with strict standards for ethics, neutrality, and investigative rigor. Those who follow AWI’s Guiding Principles strive to conduct impartial, defensible investigations regardless of who hires them.
The Limits of Investigative Authority
Investigators are not empowered to subpoena documents, depose witnesses under oath, or compel cooperation from third parties. Their work is administrative in nature and governed by the standards of a thorough internal inquiry—not the procedural rules of litigation.
Therefore, the expectation that a workplace investigator will explore and resolve every claim raised in a complaint, including legal theories of liability or damages, is misplaced. Investigators gather facts, assess credibility, and make factual findings. These findings may inform legal conclusions later made by others, but investigators do not—and should not—make those conclusions themselves.
Missteps in the Role Undermine Credibility—But That’s Not the Default
Of course, there are exceptions. If an investigator is simultaneously providing legal representation to the employer, fails to disclose conflicts of interest, or engages in biased fact-finding, their work may be legitimately questioned. Similarly, if the investigator disregards best practices or violates ethical standards, their neutrality can be called into doubt.
However, such cases should not be confused with the general role of a qualified and professional investigator. Most neutral investigators follow clear ethical frameworks and conduct investigations based on fairness, thoroughness, and impartiality. When plaintiffs’ counsel presume bias without basis, they risk missing an opportunity to meaningfully engage with the findings—or even uncover facts that support their client’s claims.
Conclusion: A Call for Better Understanding
Workplace investigators are a vital part of a fair and compliant employment process. When plaintiffs’ attorneys misunderstand or mischaracterize the investigator’s role, it can derail cooperation, delay resolutions, and ultimately harm the employees and employers involved.
Rather than assuming hostility or bias, employment attorneys on both sides of a dispute benefit from understanding what a neutral investigation entails. By focusing on facts, honoring scope limitations, and respecting the boundaries between legal advice and factual inquiry, all parties can better ensure that the truth comes to light—and that justice follows.
For more information on this matter, please contact Karen Carrera.