How to Conduct an Effective Workplace Investigation
When faced with the prospect of an investigation, employers must take steps to ensure that their investigation has certain key elements in order to be legally compliant. In addition, employers must make some immediate choices around the investigation that may have a lasting impact on their potential liability. For example, employers must decide whether their company will handle the investigation itself or hire an external investigator. If an employer decides to hire an external investigator, he or she must be well qualified.
In this blog, we list legal compliance issues for workplace investigations. Only a fully compliant employer truly demonstrates intent to prevent discrimination and harassment in the workplace.
1. Requirements for An Investigation to Pass Scrutiny in a Lawsuit
Under California law, when an employer undertakes a workplace investigation into complaints of employee misconduct, the investigation must be conducted in a manner that is fair, reasonable and in good faith if the employer wants to show that it has taken the workplace complaint seriously and has acted to prevent discrimination or harassment. Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal. 4th 93. In Cotran, the California Supreme Court emphasized that the quality of the investigation was more important than the truth of the claim. While the Court did not give an exact formula for conducting a legally compliant investigation, it explained that fairness meant listening to and giving both sides a fair opportunity to give their version of the facts. The California Court of Appeal upheld the Cotran decision in Silva v. Lucky Stores, Inc. (1998) 76 Cal.Rptr.2d382, holding that the reasonableness of an employer’s investigation depended on whether the investigation was timely, reasonable under the circumstances, and conducted by a competent investigator.
The U.S. Equal Employment Opportunity Commission (“EEOC”) and California’s Department of Fair and Equal Housing (“DFEH”) provide additional guidelines for conducting a fair and reasonable investigation, identifying the following key factors (among others):
The promptness of a company’s response to the allegations;
The hiring of an impartial investigator who is trained in the skills required for interviewing witnesses and assessing credibility;
Whether allegations were kept confidential during the investigation (so as not to contaminate the reliability of information the investigator gathers);
How thorough the investigation was, and whether the investigator made credibility determinations that ultimately allowed management to decide whether something actionable occurred.
See EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999); DFEH Workplace Harassment Guide for California Employers (May 2, 2017).
2. Who Should Conduct the Investigation: Internal vs. External Investigators?
One of the most important decisions a company must make at the onset of an investigation is whether to use an inside or outside investigator. Using internal personnel to conduct an investigation is perfectly appropriate in many circumstances. However, often a company will decide to hire an external investigator for a variety of reasons, including:
to avoid an appearance of, or actual bias by, an internal investigator
when internal investigators are not well trained
when an investigation is complicated
when an investigation involves potentially actionable conduct, or
when the investigator is investigating someone who has the power to terminate her or his employment.
3. What Qualifications Must an External Investigator Have in Order to Be Deemed Well-Qualified?
Aside from the requirement that an external investigator must be licensed to conduct investigations (generally a private investigator or attorney, see Business and Professions Code Section 7520 et seq), and the guidance about investigators provided by Cotran and Silva, there are no regulations about investigator qualifications. Many investigators are experienced employment law attorneys who have opened up their practice to include workplace investigations. In doing so, they draw on their years of experience defending against or bringing employment law claims.
Recently, some investigators have opted to pursue training in workplace investigations with the Association of Workplace Investigators (AWI). AWI is a professional association that was formed nearly ten years ago to create industry standards, enhance the quality of workplace investigations and offer support for professionals in the rapidly-evolving investigation field.
The AWI awards a Certificate (AWI-CH) to investigators that complete a very rigorous five-day training program and pass the detailed examination that AWI offers on the final day of the program. The certificate holder (CH) award represents training in best practices and covers what many experts in the field consider standards that are necessary for conducting a fair, reasonable and good faith investigation. In this way, the AWI-CH designation may help shield an employer from liability for an incomplete or biased investigation.
Of course, not every workplace investigator will invest the substantial time and money to obtain an AWI-CH and many investigators don’t necessarily need the training that is covered at the course. But the AWI-CH is a signal that an investigator takes her practice seriously and has completed some important basic training.
If you have any questions or would like to speak with an MLG attorney regarding workplace investigations, please reach out via email to info@maierlawgroup.com.
Author: Kym McCourt, AWI-CH.
The Maier Law Group helps companies ensure that their policies and practices comply with the relevant workplace regulations. Please contact us at info@maierlawgroup.com for more information.
This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.