During my career, I have represented numerous high-level Silicon Valley executives in investigations where they were either the subject of an investigation or a key witness involving allegations of workplace harassment, discrimination or retaliation. I have represented individual executives in both high profile investigations and in investigations that received no public attention. In either situation, the stakes can be high given the potential implications of the investigation results on the executive’s career and reputation. This is especially true in the current #MeToo era.
The importance of retaining separate counsel to represent an executive in a pending workplace investigation cannot be overstated, even if initially it does not appear the executive is a target of that investigation. The facts may lead investigators to expand an inquiry, implicating more individuals with varying levels of recommended discipline.
Below are four important reasons why an executive should retain his or her own attorney during a workplace investigation.
Preparation for the interview
Before sitting down for an interview with the investigator, it is helpful for the executive to meet with his or her own attorney to review the facts, gather and organize any evidence and focus on the relevant issues of the investigation. Investigations may be unsettling for an executive… an attorney can provide the executive with an objective and dispassionate analysis of the situation to better prepare for the investigation interview.
A good attorney will work with the executive to develop and articulate his or her story to the investigator in an effective and persuasive manner. This may involve preparing a binder of relevant evidence for the investigator, highlighting certain evidence or statements for the investigator’s attention or preparing a chronology to help organize events or show a link between important factual developments.
An experienced attorney will also prepare the executive for anticipated questions from the investigator. It is important to involve an attorney early in the process to ensure supporting evidence is appropriately preserved and presented to the investigator, and to avoid the potential for admissions or other statements by the executive to the company or the investigator without the benefit of counsel.
An executive should not take a “wait-and-see” attitude when it comes to workplace investigations before engaging with an attorney, especially when the executive is the target of workplace allegations. If the executive waits until after the investigation interview to retain an attorney, that attorney may be forced to engage in damage control rather than take a proactive approach that comes with early involvement in the matter.
Company interests versus executive interests
It is important for the executive to recognize that the company has interests separate from his or her own personal interests. Typically, those interests align when times are good and when the working relationship is productive. However, in the context of workplace allegations, the interests of the company and the executive may diverge.
The company is not obligated to protect the executive’s reputation or career. It is sometimes difficult for an executive to recognize when the company’s interests are in conflict with his or her own interests given the personal relationships involved. A company may make decisions during an investigation not anticipated by the executive to protect its own interests. This is especially true in the context of high-profile investigations, when the company may be concerned about publicity or shareholder reaction.
An attorney solely representing the executive’s interests is often in a better position to identify when the company’s interests may be in conflict with those of the executive. The attorney may then develop a strategy to protect the executive as best as possible under the circumstances and guide the executive through the process.
Liaison with investigator
An effective attorney representing an executive during a workplace investigation will act as the executive’s liaison with the investigator to facilitate the investigation process. Rather than take an adversarial role, the goal of the executive’s attorney is to provide the relevant information to the investigator to make his or her job easier and to allow the investigator to reach the correct conclusion in a light most favorable to the executive. The attorney should convey the executive’s story to the investigator and advocate for the executive’s interests.
An attorney who develops a good rapport and credibility with the investigator is typically more effective in asserting concerns on behalf of the executive when necessary. As an employee of the company, the executive has a general obligation to cooperate with the company’s investigations. Balancing that cooperation with protecting the executive’s interests is the job of the executive’s attorney, and acting as the liaison with the investigator is critical to that effort.
Negotiate a favorable exit, if needed
If it appears the investigation will lead to the executive’s exit from the company, the executive’s attorney is already well positioned to shift the focus from the investigation to negotiating a favorable exit. Depending on the circumstances, the executive’s attorney may even initiate discussions with the company regarding a separation agreement as part of an overall strategy to protect the executive’s long-term interests. Through a separation agreement, the executive’s attorney may negotiate terms that help protect the executive’s reputation, future employment prospects and equity holdings with the company.
Even if the investigation does not result in a recommendation to remove the executive, the executive may nonetheless want to take the opportunity to leave the company voluntarily under favorable terms and circumstances.
Most people do not expect to be involved in a workplace investigation… indeed, most employees will never experience a formal workplace investigation during their career. If the time comes however when you find yourself in the middle of an investigation at work, it pays to have an advocate by your side to guide and protect your interests through the process.