Help with workplace investigations

The following are some comments in guidance about workplace investigations. We are currently seeing a lot in the news about situations where investigations did not occur, and also apparently where possible situations of unlawful activity occurred but were not reported (although in some situations knowledge of possible unlawful activity might had been widely known). And these issues don’t simply reflect on the victim and the accused, but clearly also 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, perhaps internal audit and even the external auditor, etc., and throughout the entire organization. In recent prior posts you can also see discussions about the new COSO ERM framework which lists culture and governance as the first category of enterprise risk management.

An employer has a duty to take reasonable steps to prevent harassment, discrimination, and unlawful employment practices, and to correct inappropriate workplace behavior. See, i.e., Cal. 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 failure to investigate can be considered ratification of the unlawful activity.

In appropriate circumstances on a claim of wrongful termination by the alleged wrongdoer, when the terminated, wrongdoer employee did engage in unlawful behavior, 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.

So . . . the following are some of the issues and steps to consider or follow when determining whether the employer’s investigation of the conduct and situation was reasonable, and whether the employer had a reasonable belief in that investigation – did the employer:

  • 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;
  • Have the investigation performed by an investigator who is competent and knowledgeable about the relevant issues, and also how to conduct investigations, investigation techniques, evidence, writing reports and opinions, and oral communications and testimony (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, don’t use an investigator in which these issues might be present);
  • Follow appropriate complaint investigation procedures;
  • Listen to and treat both sides fairly and equally;
  • Obtain and understand the claims that are being made;
  • 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);
  • 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);
  • Implement progressive discipline if appropriate; and
  • Have the investigator prepare a well-reasoned report and conclusion, supported by and based on objective evidence.

That’s all for now. Of course, each situation is different, and on many of the above points courts and regulatory agencies have provided additional guidance.

David Tate, Esq., Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com  

Royse Law Firm – Practice Area Overview – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation because this is my primary area of practice)
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  •             Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  •             Trade Secrets, NDA, Accounting Issues, Fraud, Lost Income, Royalties, Etc.
  •             Privacy, Internet, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, Board & Committee, Shareholder, D&O, Etc.
  •             Insurance Coverage and Bad Faith
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Contentious Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions Including AgTech, HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

 

 

 

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