The wave of high-profile allegations stemming from the #metoo movement shows no sign of relenting, requiring employers to address their own internal policies related to workplace complaints. Just as important as developing anti-harassment and discrimination policies is establishing company procedures for investigating employee complaints. Promptly and effectively investigating and remediating employment claims is required of California employers and should mitigate potential damages. Here are answers to some of the frequently asked questions we hear regarding workplace investigations.
When is a company required to do a workplace investigation?
It’s the classic “lawyer answer.” It depends. The law requires a workplace investigation into claims of harassment, discrimination, retaliation, violence, or potential threats to safety. There are also specific employer’s policies that may create an obligation to investigate particular situations.
A workplace investigation might be advisable or appropriate at other times to protect the company from liability, such as when the employer becomes aware of such things as potential ethical/criminal violations, or other employee misconduct like theft, excessive absenteeism, abuse of sick leave, falsification of time cards, or other policy violations. Investigations may be also appropriate and beneficial when an employer observes a decline in morale.
Does every complaint require a full blown “formal” investigation?
Absolutely not. The basic goal of any investigation is to obtain factual information and act on it if necessary. There is no magic formula for conducting workplace investigations: they vary based on the issues and the people involved.
Some issues may be resolved quickly and discreetly while others may require broad canvassing of the entire workforce. For example, let’s say Mary complains that someone left an inappropriate, sexually explicit magazine in the breakroom. You go to retrieve it and find her coworker John’s name on the address label. You ask John to explain and he is clearly mortified. He explains that he brought a whole stack of his old Sports Illustrated magazines in and that the other magazine must have gotten mixed in with them. You remind John of company policy and follow up with Mary. You explain what happened to Mary and ask if there is anything else she wishes to let you know about. She says there is not. Case closed.
If the investigation is a legally necessary, is the employer required to hire an outside, professional investigator?
Again, absolutely not. Case law has long required that investigations be full, fair, and reasonable. Many investigations are conducted internally by human resources personnel or other in-house personnel and there are advantages to that approach. Cost savings is probably the most articulated reason for having an in-house employee do the investigation.
Other advantages include institutional knowledge, and that employees may feel more comfortable being interviewed by a familiar face.
On the other hand, using in-house personnel may present a conflict of interest. For example, human resources personnel will likely have a say in employment decisions that are made after an investigation is complete. Additionally, if the alleged bad actor is a highly placed employee, such as the CEO or the VP of Human Resources, and has the ability to affect the investigator’s employment, the investigator’s conclusion may be called into question.
Similarly, conflicts could arise if the in-house investigator has had a long-term relationship, working or otherwise, with anyone who might be a witness. Down the road, even a perception of bias can lead to attacks on the validity of the investigation.
The law does not require that employers use an outside professional. However, the California Department of Fair Housing and Employment recently codified the “full and fair” requirements in its 2016 regulations, which require employers to maintain policies that insure complaints of harassment, discrimination and retaliation will receive “impartial and timely investigations by qualified personnel” with “documentation and tracking for reasonable progress.”
In addition to the impartiality concerns noted above, employers should consider the timeliness requirement. Internal employees already have a job. They may not be able to complete the investigation in an acceptable time frame. Perhaps most importantly, employers considering using in house personnel also need to be certain that the investigator is competent; that means demonstrable training or prior experience in conducting investigations. You should also keep in mind that interview notes, audio tapes and reports done by internal employees are almost always discoverable in subsequent litigation, so those need to be prepared with care.
Additionally, experience shows that what starts out as a simple complaint often becomes more complicated as allegations are brought to light. Consider the above example but when you go to John; his response is along these lines: “Yes, I brought that magazine in. When I returned from family leave after adopting my son, Mary treated me differently. I overheard her making comments to Fred about single fathers almost always being gay. I have always stuttered but now she rolls her eyes and sighs when I talk. And Fred stopped inviting me to Bible study at lunch. I brought that magazine in and left it in the breakroom so they would stop spreading rumors I am gay.” An inexperienced investigator may quickly be out of his or her depth in a situation like this.
Thus, while the initial cost will likely be more than using an in-house employee, there are several advantages to using a competent independent investigator. If properly chosen, using an outside investigator will usually result in an investigation that is subject to fewer legal challenges for the following reasons: the investigator will be much more likely to be perceived as qualified and impartial; he or she will have the employment law expertise to spot and frame the issues, he or she will have the experience to properly document the investigation and to defend it on the witness stand, should litigation ensue.
Can you share some guidelines to conducting an investigation?
Yes. The following are steps to a successful investigation:
- Decide who will conduct it
- Determine issues and scope
- Make a plan
- What policies are pertinent?
- Should personnel files be reviewed? If so, at what point in the investigation should this be done?
- Is there pertinent performance documentation and should it be reviewed? If so, when?
- Is there pertinent physical evidence? If so, when should it be reviewed?
- Who should be interviewed and in what order?
- What will be the interview logistics; i.e., where, when, who will be present, and how will the interviews be documented? Notes or audio tape?
- How you will handle an employee who requests that they be allowed to bring a representative to the interview?
- How will you handle employees who refuse to participate or request promises of absolute confidentiality?
- Conduct the interviews
- Make credibility determinations
- Make factual findings/come to a conclusion
- Keep process as confidential as possible.
- Protect against retaliation
What are some of the mistakes employers make?
I think the number one mistake is not properly assessing the implications of who should conduct the investigation. Unless it is a really simple matter, I believe legal counsel should weigh in on that decision. If the choice is to go with an in house employee, legal counsel can give invaluable (and privileged) guidance as the investigation goes forward. Secondly, inexperienced investigators are often too rigid in their approach. Investigations are by their nature fluid. As seen from the above example, things can change rapidly and a good investigator needs to be able to quickly adjust and modify the investigation plan, and to be able to articulate why he or she did so. Employers also seem to struggle with credibility determinations, which can be difficult, especially in a “he said/she said” situation. Also, a good investigator must always be able to demonstrate what led him or her to believe one party over the other, and to articulate solid, defensible reasons for the conclusions reached. Lastly, inexperienced investigators sometimes apply a higher than required standard of proof. Findings in an investigation should be based on a preponderance of the evidence; they do not need to be “beyond a reasonable doubt.”
Where can an employer that decides on an in-house investigation find some guidance?
As noted, there are no specific step by step legal requirements, but the EEOC has some guidelines in place, as does the Association of Workplace Investigators. The DFEH just published a very good harassment guide, which includes great tips on conducting investigations. Additionally, we often counsel our clients through the process of an investigation, including determining whether or not to conduct it the investigation in house. For employers who choose that route, we offer guidance on the appropriate scope and investigation plan, how to make credibility determinations, apply an appropriate standard of proof and document the investigation. The goal of any investigation is to get to the heart of the complaint and take any necessary remedial action as efficiently as possible, so you and your employees can get back to work. We help clients ensure that the investigation, and any action taken as a result of the findings, is as “bullet proof” as possible.