While many employers may be familiar with the requirement to provide harassment training, including training regarding the handling of internal complaints, what to do when a complaint is received may be less clear.
Fortunately, the Department of Fair Employment and Housing (DFEH) has a harassment prevention guide for California employers.
The DFEH’s guide provides steps for conducting a fair investigation, including:
- Conducting a thorough interview with the complaining employee;
- Giving the employee accused of inappropriate conduct an opportunity to explain their perspective;
- Interviewing relevant witnesses and reviewing relevant documents; and
- Taking other investigatory steps as may be necessary to determine facts, such as visiting work sites or reviewing video.
The person conducting the investigation should reach a reasonable and fair conclusion based on the information collected and reviewed during the investigation.
The DFEH encourages that the person selected to conduct the investigation be impartial. While an employer may engage Company employees to conduct workplace investigations of other employees, an employer may also hire an outside investigator if concerns of impartiality or bias arise. In California, external investigators must be licensed private investigators or attorneys acting in their capacity as an attorney.
Whether an outside investigator or an internal employee, the investigator must document witness interviews and any other steps taken to investigate, as well as their findings. Employers should retain all documentation received from an investigator.
Whether an attorney is conducting the investigation or an internal employee, the investigator is recommended to reach factual conclusions, not legal conclusions. However, the DFEH’s guide notes that an internal investigator may sometimes conclude whether behavior violated a Company policy. This is not the same as determining that a person violated the law.
Once the investigation is completed, California regulations require that the employer take appropriate remedial steps if misconduct has been found. Employers are required under California law to prevent and correct unlawful behavior. The DFEH states that, in order to meet this obligation, an employer should:
- Stop behavior before it rises to the level of unlawful conduct;
- Impose remedial action commensurate with the level of misconduct and that discourages or eliminates recurrence; and
- Determine what the Company has done in the past in similar situations, to avoid claims of unfair remedial measures.