Employment issues can disrupt business operations and threaten a company’s public reputation, intellectual property rights, and corporate goodwill. Our attorneys represent employers nationwide in employee investigations involving all types of allegations.
An employee accuses his or her supervisor of harassment or discrimination. A customer or vendor complains that someone within your company has divulged its confidential and proprietary information. A current or former employee launches a startup using your company’s intellectual property. The U.S. Department of Justice (DOJ), Securities and Exchange Commission (SEC), or another federal agency launches an investigation based on allegations that your company has submitted false or fraudulent information to the government. What do you need to do in order to protect your company’s business relationships, public reputation, and bottom line?
These and other similar types of matters are frequently at the center of employee investigations. As a company owner, corporate executive, or in-house counsel, it is your responsibility to promptly respond to any allegations of employee misconduct. This includes not only internally-directed misconduct (such as harassment, discrimination, or theft of company assets), but externally-directed conduct as well (such as disclosure of third-party information and federal government contract or program fraud). Not only could a prompt and effective response be critical to mitigating any potential liability and protecting the company’s shareholders, but it could also be essential to preventing substantial – and potentially irreversible – corporate losses.
Outside Legal Counsel for Corporate Employee Investigations
Our firm’s corporate attorneys serve as outside legal counsel for corporate employee investigations nationwide. We offer extensive experience in investigative, remedial, and litigation matters, including experience gained conducting fraud and other investigations on behalf of the federal government. Our former U.S. Attorneys, Assistant U.S. Attorneys, and DOJ lawyers have more than 70 years of combined experience in high-level and high-profile investigations at the federal level; and, combined, our attorneys have handled well over a thousand investigations involving a broad rage of issues.
In addition to our highly-experienced attorneys, our corporate investigations team also includes several non-lawyer experts and consultants. Our investigators, auditors, compliance consultants, and former federal agents have conducted investigations on behalf of employers of all sizes as well as the U.S. Department of Labor (DOL), Federal Bureau of Investigation (FBI), Food and Drug Administration (FDA), and various Offices of Inspector General (OIGs). This experience affords our team not only deep knowledge of investigative tools and techniques, but also how internal investigations can lead to federal inquiries (and how this can be prevented).
If you need to conduct an employee investigation, there are two things that matter tremendously: experience and expedience. You need to be able to put your trust in a team of attorneys and experts who can hit the ground running while strategically advising you every step of the way. You also need the law firm you choose to be able to take action immediately. In many cases involving employee investigations, prompt action is critical – whether that means preventing further misconduct, preventing a public relations crisis, or mitigating the potential costs of litigation.
These are the Types of Employee Investigations We Handle
Our investigations team represents employers in employee investigations involving all types of internal and external allegations. We also assist companies with proactive investigations conducted in anticipation of potential employee, third-party, or government claims. In all matters, we focus on conducting the investigation as efficiently as possible, as discretely as possible, and with the necessary safeguards in place to both ensure and clearly demonstrate the investigation’s independence.
We utilize the same custom-tailored and systematic approach in every corporate employee investigation we handle. This includes, but is not limited to, employee investigations involving actual and potential allegations of:
- Theft, misuse, and misappropriation of corporate intellectual property assets (confidential information, trade secrets, trademarks, copyrights, and patents)
- Theft, misuse, and misappropriation of other corporate assets
- Disclosure and misappropriation of customer, vendor, and other third-party confidential and proprietary information
- Internal and external claims of discrimination and sexual harassment by corporate executives, supervisors, managers, and individual contributors
- Bid rigging, bid falsification, cross-charging, improper cost allocation, and other forms of federal government contract fraud
- Upcoding, unbundling, phantom billing, double-billing, and other forms of federal benefit program fraud (i.e. Medicare, Medicaid, VA, and Tricare fraud)
- Material and fraudulent misrepresentations and omissions in filings submitted to the SEC, FDA, Drug Enforcement Administration (DEA), Internal Revenue Service (IRS), and other federal agencies
- Offering, solicitation, payment, and receipt of bribes, kickbacks, and other unlawful forms of compensation
- Insurance fraud, bank fraud, money laundering, and other improper and unlawful corporate practices
- Insider trading, “tipping,” and other federal securities law violations
Employee Investigations Based on Best Practices and Focused on Risk Mitigation
While there is no single “right” way to conduct an employee investigation, there are a number of generally-accepted best practices; and, in all cases the ultimate focus of the investigation should be on mitigating the company’s risk of loss. As referenced above, this includes direct financial loss due to judgment liability as well as loss of the value of intellectual property, goodwill, proprietary information, data security and other intangible assets. Some examples of best practices for employee investigations focused on risk mitigation include:
1. Launching the Investigation in a Timely Manner
Launching the investigation in a timely manner is important for a number of different reasons. Not only does it reduce the risk of evidence being erased or destroyed, memories being lost, and recollections being influenced by interactions among employees, but it also helps to demonstrate that your company is taking the matter seriously – which can be very important. Companies should engage outside company investigations counsel promptly upon receiving a complaint or becoming aware of a potential issue, and corporate leaders and in-house counsel should be prepared to work with outside counsel to establish the scope of the investigation.
2. Ensuring the Investigation is Appropriately Broad (or Limited) in Scope
Depending on the nature, severity, and pervasiveness of the issue involved, the scope of the investigation should be either sufficiently broad or sufficiently limited to serve its intended purpose. This includes defining the issue (or issues) to be encompassed by the investigation, identifying the employees who need to be interviewed, and determining what documents and files need to be reviewed. If the issue (or issues) involved have potential implications at the federal level – i.e. if they may trigger self-reporting obligations or potentially lead to a federal inquiry – then this must be considered when establishing the scope of the investigation as well.
3. Getting the Right People Involved
Getting the right people involved means determining who will be on the investigation team and identifying the employees who need to be interviewed. While this can seem fairly straightforward, it often requires more thought and strategic planning than anticipated originally. Obviously, anyone who might potentially be involved in the subject matter of the investigation should not be included on the investigation team. However, there are many other factors that must be addressed as well, and both the investigation team and the witness list must be carefully considered.
4. Protecting Confidentiality
During the investigation, protecting confidentiality should remain a consistent priority. This includes protecting the confidentiality of the employee (or employees) who are under investigation, the employees who are interviewed as witnesses, and the company’s sensitive and proprietary information. If the investigation arises out of a breach of confidentiality, then the need for legal action in order to mitigate the effects of the unauthorized disclosure must be promptly evaluated as well.
5. Following Standardized Practices and Procedures
From the earliest stages of the investigation through its ultimate conclusion, every step in the process should follow standardized practices and procedures. Ideally, these practices and procedures will be outlined in the company’s pre-existing corporate documentation. However, if no such documentation exists, or if the existing documentation is inadequate to address the full scope of the investigation, then it will be necessary to work with outside counsel to implement standardized practices and procedures that avoid any questions of bias, steering, or other impropriety.
6. Preparing Appropriate Documentation
When conducting an employee investigation, it is imperative to thoroughly document the process, the findings, and the company’s final conclusion. In the event that questions regarding the sufficiency or independence of the investigation arise in civil litigation or a government enforcement action, this documentation will likely serve as critical evidence to protect the company.
7. Preserving the Attorney-Client Privilege
During investigations into the company, a matter that is critically important and that too often gets overlooked is the matter of preserving the attorney-client privilege. During employee investigations, all matters handled by outside counsel should be privileged. However, within the context of an investigation, inadvertent waivers are common, and company personnel must be both cognizant and cautious in order to ensure that the attorney-client privilege is preserved.
Contact the Investigations Attorneys at Oberheiden, P.C.
If your company needs outside counsel for an employee investigation, we encourage you to contact us promptly. To speak with an attorney on Oberheiden, P.C.’s investigations team in confidence, call 888-680-1745 or get in touch with us online now.