Emmy Red Carpets and HR Investigation Reports: Texas Lawyer

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Alan Bush and Lee Winkelman are routine freelance contributors for Texas Lawyer.  Their latest article, "Emmy Red Carpets and HR Investigation Reports," appeared in the October 12, 2015 issue.

Beyond actually collecting evidence, there’s a lot more to investigating an employee complaint.  The investigation report can make or break a defense.  Here’s what Alan and Lee had to say about it:

Emmy red carpets and HR investigation reports: Both put you on display. The red carpet critics will mercilessly pick apart every last detail – from hemline to cuff line, from wing tip to stiletto. No doubt, plaintiff’s counsel will play the critic on an HR investigation report. There’s no hiding the flaws.

Helping the HR investigator write the report has its downsides – and the attorney-client privilege isn’t iron clad. Some courts have blurred the lines on the privilege. They say that an attorney working with HR during an internal investigation was actually providing business advice. Check out Koumoulis v. Independent Financial Marketing Group out of the Eastern District of New York (2013). Other courts have made nearly the same move.

That puts advance training of HR at a premium. Instead of risking privilege during an investigation by going hands-on, in-house or outside counsel can train the HR team on how to close out an investigation on its own. Let’s look at a couple rules of thumb…

Read the full article for more.  In it, Alan and Lee lay out some practical thoughts on how to:

  •          Do a sanity check;

  •          Make the tough calls;

  •          Realize the standard of proof isn’t criminal;

  •          Hold the recommendations; and

  •          Keep a lid on retaliation.