California employers have a legal duty to take all reasonable steps necessary to prevent discrimination, harassment, or retaliation from occurring in the workplace. As part of that duty, employers legally required to investigate reports of alleged discrimination, harassment, or retaliation in the workplace. California law requires that the investigation be prompt, impartial, and thorough. If the investigation concludes that there was a violation of the employer’s harassment, discrimination, and/or retaliation policies, the employer is legally required to take “immediate and appropriate corrective action” designed to end the wrongful conduct. If the employer follows the law and conducts a smart, proper investigation, the employer may be able to avoid or limit its liability in a future lawsuit or dispute.
There are other instances when a workplace investigation is warranted even though it is not technically required by law. Most commonly, if an employer has a good faith belief that an employee has engaged in illegal activities or has violated company policy that could result in termination, an employer will undertake an investigation and make determinations as to what happened and how the accused employee should be disciplined, if at all.
In every case, employers should undertake all investigations with the understanding that the employer may later have to prove that (1) the employer’s investigation was prompt, fair, and thorough, (2) the employer’s findings were “reasonable” based on the evidence gathered, and (3) the employer promptly took appropriate remedial action. Thus, employers should assume at the outset that their investigations will be scrutinized in detail and second-guessed by a judge or jury.
Workplace Legal assists clients in workplace investigations either by conducting the investigation for the client or by advising and guiding the client who is handling the investigation internally. When conducting the investigation, Workplace Legal initially analyzes whether any preliminary or “emergency” measures are necessary. We then prepare a comprehensive investigatory strategy, identify potential witnesses, review all relevant policies and documents, and consider the best setting and approach for each witness interview. When interviewing parties or witnesses, we are constantly assessing motive and credibility. Throughout the investigatory process, we consult with the client’s boards of directors, corporate officers, and HR personnel to deliver objective, fair, and well-supported findings that the client can use to implement any required corrective action. We have conducted workplace investigations and written investigatory reports on topics ranging from employee embezzlement and sexual harassment to workplace conflicts.
When our client handles the investigation, Workplace Legal provides guidance and advice throughout the process to help ensure a fair, objective, and thorough investigation that can withstand legal scrutiny. We also advise the client on the appropriate correction action(s) that may be required given the findings of the investigation. Because we have brought and defended these types of claims in courts across California, Workplace Legal brings the critical insight and strategic guidance necessary to help our clients reach accurate, defensible findings that support appropriate, defensible corrective action.