Unique Challenges for Nonprofits When Conducting a Workplace Investigation, Part 1
For nonprofits, especially small and mid-sized organizations deeply rooted in mission and community, workplace investigations come with unique operational, legal, and cultural challenges. Whether you are responding to an allegation of harassment, discrimination, financial impropriety, safety concerns, or other workplace misconduct, you need a process that protects your people, your mission, and your organization’s legal and reputational standing.
In California, where employers face some of the most robust workplace protections in the nation, conducting a nonprofit workplace investigation can be even more challenging. The following are some tips designed to help you approach these investigations with care, while staying legally compliant.
1. Understand When an Investigation Is Legally Required
Nonprofits, like all California employers, are required to investigate certain complaints once the organization knows or should know of the complaint. You do not have to wait for a formal written complaint. This means that if an employee, volunteer, or even a board member expresses concerns about discrimination, harassment, retaliation, or unsafe conditions, even informally, you must take those allegations seriously, and act promptly. California employers have a duty to investigate all complaints of harassment, discrimination, and retaliation. Delaying or ignoring these issues can expose your organization to legal risk and erode trust.
2. Ensure That You Have Strong, Clear Policies
Even before an investigation begins, your orgnaization needs written policies that clearly describe:
What types of behavior are prohibited
How to file a complaint (including anonymously)
Who handles investigations
What investigation processes will be followed
Anti-retaliation protections that protect the employee(s) who brings the complaint forward
Nonprofits with lean staffing may face more risk and challenges with implicating the above steps, because policies may exist on paper but may not be communicated to staff on a regular basis, or written policies may be ignored in practice. Make sure all employees and volunteers know where these policies are kept, what they mean, and how the investigation process works. Distribute your employee handbook (or investigation policy) during onboarding and offer periodic refreshers. Policies that live in a folder or desk drawer will not protect you in a crisis if they were also not clearly explained to employees during the hiring process.
3. Consider Hiring a Neutral Third-Party Investigator
In smaller nonprofits without full-time HR, the director, operations lead, or long-time program manager might feel pressured to take on investigation duties. This is especially risky because without solid experience with conducting investigations, an untrained investigator could leave the nonprofit at risk of being sued. In addition, in a small nonprofit with lean staffing, it is not advisable for an employee to investigate their colleagues, namely because the social and cultural ties between employees may prevent the employee tasked with investigating from being neutral. Using an internal investigator can create real or perceived bias, undermining the entire process. Before assigning an internal investigator, determine if:
They have a direct relationship with the complainant or respondent
They have training in interviewing and evidence gathering
Their findings will be perceived as fair and impartial
If the answer to any of these is “no,” consider hiring an external investigator, employment attorney, or consultant, even if the matter seems small. While the expense is higher, it protects your organization’s integrity and reputation, ensures neutrality, and can prevent an even more expensive lawsuit.
4. Legal and Compliance Considerations Unique to California
California has several specific legal frameworks that intersect tightly with workplace investigations. Nonprofits in California should keep the following legal guidelines in mind when encountering personnel decisions that may require an investigation:
Fair Employment and Housing Act (FEHA): FEHA prohibits discrimination and harassment based on protected characteristics and demands a timely, thorough, and objective investigation when allegations arise.
Whistleblower and Retaliation Protections: Employees (and sometimes volunteers or contractors) are protected against retaliation for making good-faith complaints or participating in an investigation. Retaliation claims are common and costly, and can be easier to prove than the underlying, original complaint itself.
Workplace Violence Prevention Plans: California’s SB 553 requires written workplace violence prevention plans for most employers, including nonprofits. Investigations into violent incidents are part of compliance with this new requirement.
These layers of legal obligations mean nonprofits need solid processes in place and cannot afford to wing it when faced with a complaint. While many nonprofits have good intentions, when it comes to complying with the law, good intentions are not enough when faced with a workplace complaint. Be sure that your organization has written policies that comply with the above legal guidelines.
5. Confidentiality Is Critical But Not Absolute
Investigations demand confidentiality to an extent to protect complainants, respondents, and witnesses, and to encourage openness. But confidentiality is not absolute because relevant information must be shared with those who have a legitimate need to know. Therefore, during an investigation, you must balance privacy against thoroughness. Practical steps include:
Conducting interviews in private settings
Explaining confidentiality expectations to participants
Limiting document access
Securing any digital or physical evidence
Handling confidentiality during a workplace investigation can be an extremely delicate balancing act. You may need to consult with an employment attorney (if you are conducting the investigation internally), or defer to your external workplace investigator, if you are working with one.
Closing Thoughts
Nonprofits are built on trust, shared values, and a commitment to doing good, but those same qualities can complicate how workplace issues are recognized and addressed. When concerns arise, handling them promptly, fairly, and professionally is not a distraction from the mission; it is essential to protecting it.
Next month, we will publish a second part of this blog on the unique challenges that nonprofits face during a workplace investigation. Don’t miss it!
Maier Law Group regularly assists employers with workplace investigations. Please reach out if we can help to further explain our investigation process.
Author: Margarita Wear, Partner. Margarita conducts workplace investigations, counsels clients managing internal investigations, and provides advice and counsel to businesses of all sizes. Margarita’s investigation practice includes both workplace and educational institution (Title IX) investigations, and she has completed a 40-hour mediation training.
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.