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Using an Investigator for Employment Law Discovery

Employment disputes can be tumultuous, often leading to a “your word against mine” situation.  However, when one of those parties is a large corporation and the other is just a single employee, the employee can be at a slight disadvantage in terms of the weight given to on their recollection of events by the judge and/or jury. Because of this, the use of an investigator can offer a critical advantage in an employment law case.

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You can be assured that the employer is doing their due diligence and attempting to uncover everything that they can about the employee and his or her time with the company.   It is in the employee’s and their attorneys’ best interests to do the same.

Investigators aren’t typically a resource that most attorneys think of when initiating an employment law suit.  This is a mistake.  Just like any dispute, whether a personal injury claim, a contract claim, or a patent infringement claim, facts need to be examined.   In an employment dispute, the facts are found in a limited number of areas.  The personnel file will likely be the primary focus in the discovery phase of the lawsuit for both the employer and the employee.

But, the personnel file is just paper and cannot elaborate beyond the words printed inside.  To properly investigate a dispute and present a non-paper representation of the employee’s record, an investigator should be retained to conduct interviews of coworkers, former coworkers, former supervisors, customers, vendors and anyone who can talk about the quality of the employee’s work, the quality of the employee as a person and interactions between the employee and the employer.

An investigator, as opposed to the representing attorney, can be a much-preferred choice to conduct these interviews.  An investigator is a neutral and licensed third party that commonly has a great deal of experience in interviewing witnesses and parties in both civil and criminal disputes.  Investigators also possess the access to find old coworkers, through database searches, who might otherwise be difficult to locate.  Pertinent questions that an investigator should pose to these witnesses, about the employee, would change based on the circumstances but common questions would involve: work ethic, punctuality, performance and quality of work, social encounters, discrimination, harassment, accidents and illegal activity.

There are a variety of reasons to initiate an employment-related lawsuit.  Issues could involve discrimination, retaliation or wrongful termination.  Regardless of the reason, the commonality in all employment disputes is that they all initiate in the workplace.  And in most workplaces, there are coworkers, vendors, customers and supervisors (past and present) that have witnessed the employee in his or her role within the company.  These witnesses can possess valuable information that can go to the credibility of the employee.

During the interview process, the investigator can either take notes or record the conversation electronically.  This information will then be put into a report and provided to the representing attorney.  At which point, the attorney can choose to share this information with opposing counsel (or not) with hopes of improving the employee’s position in settlement discussions.

Whether the case settles or not, the information gathered by the investigator, especially if the information is favorable, will be useful in moving forward with litigation.  This information can provide guidance to the representing attorney and assist in selecting those individuals to depose and, eventually, those individuals to present during trial.  Testimony from witnesses that have the ability to contradict the employer can be very persuasive and powerful in the prosecution of a claim.  This testimony might never be found without the assistance of an outside investigator.

Brandon Schuh is the President and owner of Paper Trace Investigations LLC, which provides investigative services to law firms, corporations and individuals.  Mr. Schuh has nearly a decade of experience investigating personal injury accidents, fraud, contract and employment disputes, patent infringement claims and workers compensation claims.