It is important that employers across the country conduct proper investigations into workplace complaints. But these investigations are especially critical in California for a couple of reasons. First, employees can bring claims in California courts resulting from a botched investigation. An employee can sue for failure to prevent harassment, discrimination, and/or retaliation if the employee makes a protected complaint, and the employer either fails to conduct a prompt and thorough investigation, or does not take the appropriate remedial actions after the investigation. Second, many plaintiffs’ attorneys in California retain HR experts to opine on all of the things the employer should have done to investigate, but didn’t, or all of the ways the employer botched the investigation.
These California-specific issues have led to more frequent requests from clients for guidance on how to conduct proper and solid investigations. Here is a general overview of things to keep in mind when investigating employee complaints.
Why Investigate? The purposes of an investigation include identifying violations of corporate policy or law and halting such activity. Another objective of an investigation is to improve the factual basis for corporate decision making concerning alleged incidents of unlawful or otherwise improper conduct, such as theft, drug use, discrimination, threats, assaults, sexual harassment, safety concerns, and harm to property. And yet another reason to investigate is to comply with a legal requirement to do so.
When to Investigate. An employer should investigate any complaint alleging unlawful or otherwise improper conduct, regardless of whether the complainant thinks the investigation is necessary. And even if a claim appears to be fabricated by the complainant, the claim should be investigated seriously. Where no complaint has been made, the employer still should investigate if it is aware of (or suspects) that potentially inappropriate conduct is occurring or has occurred. The investigation should be prompt, thorough, and completed as quickly as reasonably possible.
Selection of the Investigator. Choosing the right investigator is critical. A good investigator understands the role, is properly trained, is neutral and objective, has a high level of personal integrity, understands any issues under investigation, has time to devote to the investigation, and has the respect and backing of employees and upper management. A good investigator also is adept at interviewing witnesses, is tough enough to ask hard questions and sensitive enough to engender the confidence necessary to draw out honest answers, and is a credible and effective witness should litigation result. Of course, the accused should not play any role in selecting the investigator or conducting the investigation.
Use of an Outside Investigator. We recommend using an outside investigator where a high-level executive is the accused wrongdoer, the employer wants to ensure that there is no appearance of bias, the matter involves complicated facts or likely litigation, or the alleged wrongdoer is perceived to be violent and/or retaliatory. And the employer may decide to have an attorney conduct the investigation, which could potentially protect some of the investigation based on the attorney-client privilege and work product doctrine.
Preparation. Inadequate preparation can doom an investigation from the start. Before launching the investigation, the investigator should identify potential interviewees and their relationships to the matter under investigation, identify documents to be reviewed, identify potential interviewees, prepare an outline of questions, decide the order of interviews, determine the format for recording information from witnesses, and periodically review the investigation plan.
Identification of Documents. It is very important to identify and review all documents relevant to the employee complaint before starting the investigation. These documents include any written complaint and notes regarding the complaint, relevant employer policies, rules, and procedures, memoranda or notes about the incident(s), managers’ notes and files, records of prior complaints against the alleged perpetrator, records of prior complaints by the complainant, personnel files of individuals involved, witness statements, relevant business records (e.g., emails, time cards, calendars, diaries, photographs, logs, etc.), and physical evidence.
Identification of Witnesses. The investigator first should talk to the complaining employee and then go from there. Other individuals whom should be interviewed include the accused, persons identified by the complainant, persons identified by the accused, and anyone else who may have relevant information.
What to Say. At the outset of the interview, the investigator should inform interviewees that the purpose of the interview is to investigate a complaint of alleged improper conduct; that full, truthful cooperation is expected; that there will be no retaliation for cooperating in the investigation; that the witness has the right and duty to report any perceived retaliation; and that there are limits on confidentiality (i.e., that the information the interviewee provides will be disclosed on a need-to-know basis). To the extent possible, the investigator should use open-ended questions that will more likely elicit broader and more thorough responses from employees.
More Importantly, What Not to Say. The investigator should not promise absolute confidentiality or provide unnecessary information. The investigator also should resist the urge to provide opinions during the investigation, to agree with any witness, or to tell the complainant or any witness that they are wrong. The investigation should be a fact-gathering exercise, and any conclusion must wait until all facts are collected.
Advice On Note-Taking. The investigator should take detailed notes, as close to verbatim as possible. At the end of an interview, the investigator should review with the witness the points contained in his or her notes to confirm their accuracy and to determine if the interviewee has anything to add.
Concluding the Investigation. After reviewing all relevant documents and interviewing all witnesses, the investigator should reach a conclusion and decide on one of the following: (1) there was a violation of employer policy or some other misconduct; (2) there was no violation; or (3) the evidence is too inconclusive to determine if there was a violation. Note that this determination involves whether there is a policy violation, not a violation of the law. Any finding of a legal violation could be used against the employer in litigation. The investigator also may recommend possible next steps, such as discipline or transfer of the accused, and training on related topics for those involved or as a refresher for all employees. However, the decision maker(s) (someone other than the investigator) should decide actual next steps. Finally, the employer should inform the complainant of the general outcome of the investigation, but should be wary of providing any details about discipline to avoid any privacy concerns.
Workplace Solutions. While one size does not necessarily fit all, by following these investigation tips, employers will have good argument that they did it right. And while a good investigation won’t necessarily shield employers from lawsuits, it may make winning these cases that much easier.