Key Ingredients for Workplace Investigations
Potential workplace investigation clients have been asking me a lot of questions lately about who should conduct an investigation, and how, in order to garner the maximum legal protection such investigations may provide. In short, to get the most bang for your buck, it’s important to hire someone licensed to conduct investigations (generally a private investigator or attorney, see Business and Professions Code Section 7520 et seq), and to follow the dictates of Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal. 4th 93. In Cotran, the California Supreme Court explained that the reasonableness of the employer’s investigation into an employee’s claim of harassment, not whether the harassment actually occurred, determined whether the employer could be liable for wrongful termination of an accused harasser. Reasonableness was essentially determined by establishing whether the workplace investigation contained a few key ingredients. They included:
- 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.
California Employment Lawyers Association (CELA) member Michael Robbins wrote an excellent article on this topic. The same year as the Cotran decision, the California Court of Appeal in Silva v. Lucky Stores, Inc. (1998) 76 Cal.Rptr.2d382 affirmed the elements of a reasonable investigation outlined in Cotran. The Silva court held that the reasonableness of an employer’s investigation depended on whether the investigation was timely, was conducted by a competent investigator, and was reasonable under the circumstances.