The following are some comments as guidance for workplace investigations. We are seeing ongoing news about situations where investigations did not occur, and situations where investigations have been starting or are in progress, and also apparently where situations of alleged possible unlawful activity occurred or might have occurred but was not reported (although in some situations knowledge of possible unlawful activity might had been known). These issues don’t simply reflect on the accuser and the accused, but reflect on the business, nonprofit or governmental entity at issue, and, variously depending on the situation, elected representatives, executive officers, boards of directors and the board committees, general counsel, compliance and ethics professionals, HR, employees, perhaps internal audit and even the external auditor, etc., and throughout the entire organization or entity.
An employer has a duty to take reasonable steps to prevent harassment, discrimination, and unlawful employment practices, and to correct inappropriate workplace behavior. See, e.g., California Gov. Code §12940(k); and 29 CFR 1604.11(d). An employer can be liable for the failure to investigate, at least if there was underlying unlawful activity. And a failure to investigate can be considered ratification of unlawful activity.
In appropriate circumstances on a claim of wrongful termination, the question can become whether the employer acted appropriately and in good faith after conducting a reasonable investigation and based on a reasonable belief in that investigation – in other words, the reasonableness of the employer’s investigation can become the standard by which the employer is judged for alleged wrongful termination liability purposes.
The following are some of the issues and steps to consider or follow when determining whether an employer’s investigation of the conduct and situation was reasonable, and whether the employer had a reasonable belief in that investigation – did the employer or entity:
- Take the complaint of wrongdoing seriously;
- Maintain confidentiality of the situation to the extent reasonably possible;
- Conduct a timely investigation, promptly after receiving the complaint of wrongdoing;
- Decide and appoint an appropriate sufficiently independent and qualified person or committee to oversee the investigation, and for decision-making;
- Consider whether the investigator will be someone in-house or from outside the entity;
- Have the investigation performed by an investigator who is competent and knowledgeable about the relevant issues, and also how to conduct (and evaluate) investigations, investigation techniques, evidence (including, e.g., credibility, admissibility, and whether the evidence or possible evidence is “A” or “B” or “C” evidence), writing reports and opinions, and oral communications and testimony, and also note issues that might be present if the investigation is performed by an attorney for whom attorney client or work product privileges might be claimed – in short, work these issues out before the investigator is selected;
- Consider legal counsel and possible other assistance needed;
- Follow appropriate complaint investigation procedures;
- Listen to and treat the difference sides fairly and equally;
- Obtain, evaluate and understand the claims that are being made and possible defenses – including, e.g., claims based on a statute or section of law, a regulation, or a rule, and also claims based on some other standard such as any applicable policy, handbook, code of conduct, contract, collective bargaining agreement, etc. that had been enacted or adopted;
- Provide the accuser with ample opportunity to offer evidence of his or her claims including what occurred or not, documents that might be relevant, and the names of and information about witnesses who he or she believes can provide relevant comments about the alleged occurrence(s);
- Give the alleged wrongdoer fair notice of the claims being made;
- Provide the alleged wrongdoer with ample opportunity to offer evidence in his or her defense, including what occurred or not, documents that might be relevant, and the names of and information about witnesses who he or she believes can provide relevant comments about the alleged occurrence(s);
- When appropriate, provide and communicate an appropriate means whereby third parties can provide information that is relevant to the issues and the investigation;
- Have the investigator conduct a thorough investigation, under the circumstances (note that in some circumstances courts have held that the investigation need not necessarily be perfect, but it should be sufficient, reasonable and thorough under the exigencies and circumstances at hand without the benefit of full discovery or a trial);
- Have the investigator prepare a well-reasoned report and conclusions, supported by and based on objective evidence;
- Have the investigator report to the decision-making person or committee;
- Have the decision-maker or committee prudently and appropriately evaluate the claims, defenses and investigation; and
- Implement progressive discipline if appropriate?
Of course, each situation is different, and for some of the above points the courts and regulatory agencies have provided additional guidance.
Best to you, David Tate, Esq.
Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.