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What Every Employer Should Know about External Workplace Investigations

It is incumbent on a California employer to establish a mechanism to receive employee complaints and to determine whether a detailed fact-finding investigation is necessary. The following outlines what every employer should know about external workplace investigations. [1] 

1. Types of Claims Requiring Investigation. The types of employee complaints and/or allegations which require an employer to investigate include discrimination, harassment, and retaliation. [2] The employer should also investigate when facing employee claims of unlawful conduct, workplace violence, employee theft, or other misconduct.

2. Qualifications and Role of an External Investigator. In California, a third-party investigator must either be a licensed private investigator or a licensed attorney. [3] The investigator should be someone with the requisite background and experience to be able to perform a thorough and unbiased inquiry. An employment attorney who performs an investigation on behalf of a client must serve as a neutral fact-finder, and not an advocate for one side or the other. The employer must ensure an effective workplace investigation is performed by requiring the investigation be conducted promptly, objectively, and thoroughly.

3. Attorney-Client Privilege and Confidentiality Considerations. When the primary purpose of an outside attorney’s investigative work is for purposes other than providing legal advice, and particularly if that work is used as a defense in later litigation, the attorney-client privilege will likely not apply. [4] Moreover, the employer and the investigator should always maintain confidentiality of the allegations and witnesses to the extent possible, however, since an effective investigation cannot be conducted without revealing certain information, complete confidentiality is not possible. While the investigator must inform the alleged wrongdoer of the allegations made to ensure fair notice is provided, the investigator should only reveal as much detail as necessary to the witnesses to effectively gather all the information each witness may know about the allegations.

4. Timeliness for Starting the Investigation. If an employer determines that an investigation is necessary, it should be launched immediately. EEOC guidelines indicate an investigation should start within 48 hours of receiving the complaint. However, courts have made it clear that the practical realities of the workplace should be taken into consideration when deciding when to start and when to complete the investigation. [5] The employer’s complaint policies and mechanisms should be in place to ensure the timeliness of the investigation.

5. Allowing Access to Documentary Evidence. In most investigations, the investigator will want to review relevant company documents, such as applicable policies and procedures, personnel files, e-mails, text messages, instant messages, voicemail messages, telephone records, computer history, security footage and/or logs and written complaints and/or witness statements. The employer should be ready and available to provide the requested documentary evidence to the investigator.

6. Conducting Witness Interviews. The investigator will need to conduct witness interviews. The investigator will usually interview the person who made the complaint first, followed by the alleged harasser or wrongdoer. The investigator will generally follow these interviews by interviewing other witnesses, including those who may have knowledge of the allegations, and may include current co-workers, former co-workers, supervisors, managers, and/or third parties. The employer should be able to assist the investigator in coordinating and scheduling interviews at the request of the investigator.

7. Consideration of Intermediate Remedial Measures, but No Retaliation Permitted. An employer must consider taking immediate steps to temporarily correct the situation while the investigation is under way. At the start of the investigation, or during the investigation as facts may be discovered, the employer should consider appropriate remedial measures (such as suspension, changing an employee’s shift, or taking action to avoid the parties’ interactions with each other) to ensure that further illegal conduct does not occur. However, an employer must remember that it has the obligation to ensure that no adverse treatment is taken against any complainant or witness participating in the investigation process. [6] An employer should be prepared to handle a report from any witness who believes they are being retaliated against as a result of participating in the investigation.

8. The Investigator’s Report. While the employer can request that the investigator provide an oral or a written report at the conclusion of the investigation; the employer should (in most incidents) request a written report from the investigator. A full report written by the investigator will provide the company with a summary of the allegations, an outline of the material reviewed, summaries from the witnesses interviews – including responses to the allegations, the evidence considered and well-reasoned factual conclusions supported by the evidence. The report may also suggest remedial measures and/or provide recommendations, if requested.

9. Reaching a Determination and Communicating the Results. Once all the evidence is in, interviews are finalized, and credibility issues are resolved, management should make a determination as to whether harassment occurred. That determination could be made by the investigator, or by a management official who reviews the investigator’s report. The employer should consider the best way to communicate the results of the investigation to the complainant and alleged wrongdoer. While all details of the investigation need not be disclosed, it is imperative that some communication be made. When communicating with the complainant, he/she should be assured that the company conducted a fair and thorough investigation and at least some general details regarding the conclusions and determination should be given. The alleged wrongdoer should also be informed of the conclusions and determination. The employer should also consider whether limited communication to any witnesses is necessary.

10. Instituting Appropriate Corrective Action. An employer’s duty to prevent wrongdoing and correct bad behavior begins when the employer learns of the alleged wrongdoing. The employer must take both immediate steps to temporarily correct the situation while the investigation is under way, and more permanent steps once the investigation is complete. [7] In determining disciplinary measures, management should keep in mind that the employer could be found liable if the harassment does not stop. Any corrective action by the employer must be of a disciplinary nature and “reasonably calculated to end the harassment.” [8] Examples of appropriate measures include: oral or written warning, transfer, demotion, reduction of wages, training and/or counseling, suspension, termination. Remedial measures should not adversely affect the complainant.

By hiring an external investigator to conduct an investigation that is prompt, impartial and thorough (including, gathering from the complainant all relevant allegations of the complaint, giving fair notice to the alleged wrongdoer of the claim(s) made against him/her, providing the alleged wrongdoer an opportunity to respond and offer evidence in his/her defense, collecting all necessary information from documents and witnesses as appropriate, providing a well-reasoned conclusion, and following the investigation with appropriate corrective action) an employer should be able to avoid liability on a wrongful termination claim and should have a strong defense of exercising reasonable care to correct unlawful conduct from occurring again. [9]

If you’re an employer, or an attorney representing an employer, who needs an external workplace investigator, please contact Rizzo Law.

 


 

[1] Author’s research and content herein was referenced from CEB OnLaw’s Employment Law Publication: Advising California Employers and Employees – Workplace Investigations and the U.S. Equal Employment Opportunity Commission (EEOC) Enforcement Guidelines on Vicarious Employer Liability for Unlawful Harassment by Supervisors.

[2] Under California and federal law, employers have a legal duty to take “all reasonable steps” to prevent and correct harassment, discrimination, and other unlawful employment practices. (Gov’t Code §12940(h)(5), (k); 29 CFR §1604.11(d).)

[3] See Bus. & Prof. Code §§7522(e), 7523.

[4] See Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 CA4th 110, 128.

[5] See Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256.

[6] Crawford v. Metropolitan Gov’t of Nashville & Davidson County (2009) 555 US 271, 129 S Ct 846; Colarossi v. Coty US, Inc. (2002) 97 CA4th 1142, 1152 (employer cannot retaliate against witness in harassment investigation).

[7] See Swenson v. Potter (9th Cir. 2001) 271 F3d 1184.

[8] Ellison v Brady (9th Cir. 1991) 924 F2d 872, 882 (if employer knew or should have known of harassment, remedial action is required and must be reasonably calculated to end harassment).

[9] See Cotran v. Rollins Hudig Hall Int’l, Inc. (1998) 17 C4th 93; Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256 and Holly D. v. California Inst. of Technol. (9th Cir. 2003) 339 F3d 1158, 1177.

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