Navigating the Minefield of Workplace Investigations
It’s a call that no employer wants to receive – there has been a complaint of harassment and you must decide how to move forward. With the substantial media scrutiny surrounding harassment claims, most employers may feel that they are in a no-win position. But that isn’t entirely true, if the employer is sufficiently proactive. In two 1983 cases, the Supreme Court created an affirmative defense to hostile environment harassment claims when an employer can show that they: (1) exercised “reasonable care” to prevent harassment from occurring - typically shown by establishing and enforcing a meaningful company policy prohibiting harassment; (2) conducted a “swift and remedial” investigation of harassment claims once they “knew or should have known” of the behavior; and (3) took steps reasonably calculated to keep the harassment from happening again. If you’ve been reading our previous articles, you should have no problem meeting the first prong. This month, we want to focus on the elusive second prong of workplace investigations and help employers swiftly and effectively respond when necessary.
- What is a workplace investigation? Most investigations will generally follow the same initial process: (1) identify and interview the complainant, the accused party, and all pertinent witnesses; and (2) review all relevant documents including e-mails, correspondence, performance documents, employee files, etc.
- Understand the claim. It is important for the investigator to understand what constitutes harassment in the workplace, both legally and as embodied in the company policy. Generally speaking, the legal definition of hostile work environment harassment is severe or pervasive behavior that creates an abusive work environment. Understanding the focus of the investigation will allow the investigator to prioritize the most relevant issues and steer clear of tangential ones. Not all behavior meets the legal definition of “harassment,” but it nonetheless may need to be addressed for sound business reasons.
- When do I need to do it? Immediately! The moment you learn about the complaint starts the clock on whether the investigation is considered “swift” for purposes of establishing a defense. On the flip side, when a current employee brings a complaint of misconduct that occurred years earlier, employers are still obligated to address the complaint if the accused wrongdoer is still an employee. While this may be challenging in light of fading memories and gaps in document retention, an employer must nevertheless make a good faith effort to diligently investigate the complaint.
- How do I do it? California regulations require an investigative process that provides all parties with an appropriate level of due process. Although this is not specifically defined by the regulations, due process generally means: (1) giving parties notice of what is being alleged against them; (2) providing a meaningful opportunity to fully respond to the allegations being made; (3) being thorough and complete; (4) performing a fair and unbiased investigation; and (5) acting in a timely manner.
- Decisions, decisions… Following the investigation the employer should arrive at a fair and reasonable conclusion. In a “he said, she said” type of case, it’s easy to simply state that no conclusion can be reached – but the employer can’t take corrective action if the investigator doesn’t make conclusions. In most circumstances, the investigator can determine that something “more likely than not” happened after assessing credibility, the nature and quality of the evidence, and other corroborating factors that support a decision.
- Make your report. Always make a through written finding. Investigation reports can be extremely helpful for making decisions and for defending those decisions, if need be. On the other hand, a bad investigation report can call into question the quality of the entire investigation.
In many circumstances, an employer may have internal HR personnel conduct the investigation – and sometimes personnel who are aware of the company culture and the individuals involved, and are familiar with company policies, may be the right choice. But sometimes it’s not. In appropriate circumstances, employers should consider hiring an attorney or licensed private investigator to perform the investigation. When should the company consider hiring an attorney or investigator? Here’s a partial list:
- The complaining party has hired a lawyer, filed a lawsuit, or filed a charge with a governmental agency
- Allegations involve misconduct by high-level employees or corporate officers, such as the CEO or other high-level personnel
- There complaints involve sensitive or egregious complaints, such as sexual harassment, discrimination, retaliation, whistleblowing, theft/embezzlement, or assault/battery
- Multiple complaints from more than one employee about the same problem (e.g., several employees complain that a particular manager is harassing them)
- Allegations of widespread discrimination (e.g., the company treats women differently regarding pay or promotions, or it only hires younger workers)
- Challenges to an employer’s policies or practices as having a disparate impact on a protected category of employees (e.g., based on age, race, gender)
- Allegations which involve the potential for significant financial or legal exposure
- Allegations that may lead to the potential for adverse media publicity
- Internal personnel lack the expertise or time to fully investigate the complaint
- Anytime an internal investigator’s experience or impartiality may be challenged
Complaints of harassment in the workplace must be taken seriously. They are certainly taken seriously by the government, the courts, attorneys, and employees. In order to minimize liability, an employer should be able to show, at minimum, that it took the complaint equally seriously and investigated appropriately.
For more information or to discuss any of your employment concerns, please contact our employment attorneys at Hall Griffin LLP.
Notes:
1. New reader? A library of our previous articles can be found here: https://www.hallgriffin.com/insights/.
2. HR consultants who are not company employees are not legally able to conduct sexual harassment investigations unless they are also a California attorney or a licensed private investigator.
Authors:
Stephanie M. Stringer, Hall Griffin, Associate
John A Cone, Jr., Hall Griffin, Of Counsel