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There seem to be no shortage of articles and blogs these days touting the merits of conducting workplace investigations in many circumstances (we know because we write a lot of them). You read about how they can improve the workplace and help employers avoid legal liability. What you don’t often see written about is how expensive they can be.
We all know that clients are anxious to find ways to reduce their legal expenses and the costs associated with workplace investigations are no exception. What we also know, however, is that this is not the place to cut corners as far as costs are concerned. In our training courses, we regularly hear horror stories from organizations that tell us that they hired an investigator because of their low hourly rate only to later discover that the poor quality of the work and the consequent legal problems that ensued far outweighed the “discount” they received on the hourly rate they were charged.
So, if you are an employer looking to hire an external third party investigator (or you are counsel assisting your client in this regard), the question is how can you be a more effective consumer of investigation services? Because we often work with our investigation clients to help them get maximum usage out of their investigation budgets, here are some suggestions we can offer:
1. Ask for a Cost Estimate
We find that clients tend not to do this for several reasons. First, some are so afraid of what the overall amount will be that they just don’t want to know. When we discuss potential costs at the outset and our clients are surprised, any budget limitations are usually revealed and we are able to try and help manage the costs as best we can, or sometimes just help manage organizational expectations around cost. In fact, we explicitly ask our clients to let us know at the outset if there are particular cost sensitivities or limitations so no one is surprised later on.
In other cases, we find that clients have absolutely no idea what the potential costs can be, and they are utterly shocked (and upset) when they later receive a bill after many hours of time have been spent working on the case, usually within a very short period of time. Again, frank discussions about fees and budget realities at the time of the retainer can help bring all of these issues to the forefront early on and often lead to creative solutions on managing costs, some examples of which are discussed below.
2. Divide the Investigation into Phases
Breaking down an investigation into individual steps or groups of steps often allows us to provide flat fee estimates for those steps, which gives clients some certainty as they undertake the process. This can work particularly well in cases where it is not exactly clear at the outset what the scope of the investigation will be, and therefore what the magnitude of the overall cost will be. In these cases, we look to complete each phase for the specified fee (or within a fixed fee range) and then we re-group with the client to discuss the information we have received and discuss options for proceeding forward. In doing so, and especially now having a better sense of what the overall scope is, we can often enter the next phase with more certainty of the costs going forward.
The truth is that the phased approach doesn’t always save costs overall, because it may be that a full investigation must be done and all necessary steps will need to be taken. However, clients seem much more satisfied when they understand the specific costs at each phase and the reasons for those costs, and they also appreciate being consulted regarding the next process step forward and corresponding cost estimates.
In some cases, overall costs are reduced because breaking down the investigation into phases can sometimes better identify opportunities to deviate from the investigation path and head down another path, such as a mediation or other dispute resolution mechanism. These opportunities could otherwise be missed if an investigator were simply given an initial mandate to investigate and report back.
3. Consider Possible Efficiencies
We have explored with our clients a number of ways to try and cut down some of the time consuming activities associated with conducting investigations. For example, in some cases we have been able to have a more junior lawyer review interview notes and summarize evidence for the purposes of generating a list of allegations or entering the evidence into a draft of a report. In other cases, we have looked at our client’s individual needs and learned that a full written report like the ones we typically generate might not be necessary and we’re able to offer something more condensed and cost-efficient.
In some limited cases, we have even worked with employers and unions to establish an investigation plan whereby agreements are made to time-limit interviews in order to control the process and costs. Appropriate cases for such approaches are rare, but if it means the difference between conducting an investigation and not, this can be the preferred path.
Increasingly we have found that there is no “one-size-fits-all” with workplace investigations. We are always very mindful of our clients’ limited budgets and try and find ways to help manage these cost limitations while helping them fulfil their legal obligations and conduct a defensible investigation. We believe this is a far better approach than choosing an investigator based on the lowest hourly rate. We’ve seen too many of our clients learn the painful lesson that sometimes cheap is cheap for a reason.