California Independent Workplace Investigations

California employment laws require an employer to conduct a "prompt and thorough" investigation of any alleged conduct which may constitute unlawful harassment, discrimination and/or retaliation. But failing to conduct an investigation any time an employee claims, directly or indirectly, that he/she feels mistreated in any manner in the workplace (even if not required by law) leaves the employer exposed in subsequent legal action.
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Likewise, an investigation into direct or indirect allegations of misconduct or potentially unlawful conduct by employees in the workplace is the best course of action for the employer at any point.

However, not every investigation resembles the ones conducted on television shows like CSI. Investigations may begin and end after one meeting with the employee, if the basis of his/her beliefs do not raise any allegations of unlawful conduct or violations of Company policies. In that case, documentation to the file will end the investigation.

A third-party investigator, such as our team of highly-experienced employment attorneys at Sherman Law Firm, help conduct the type of efficient and dependable investigations necessary in California.

"Smart, savvy, effective, and attentive. Lisa knows her stuff and gets things done with amazing speed and efficiency. Her passion for her work and her dedication to the client are unparalleled. She is a joy to work with, and I would be happy to work with her again."

~ Ian Ramos

Poorly-Conducted Internal Workplace Investigations
Weaken Employers' Defenses

California courts have found in several recent cases that an employer’s inadequate or incomplete investigation can prove that an employee’s termination was a pretext for unlawful conduct.

Even in an example of harassment during which the employer concluded that the complainant and alleged harasser engaged in unprofessional behavior and fired both of them, a California Court of Appeals concluded that the employer “did not value the discovery of the truth so much as a way to clean up the mess that was uncovered.”

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Here are some of the most common challenges to employer investigations that California Courts have found:

Delayed Investigation

Any delay from the date when the employer became aware of the issue to the date they launched the investigation will raise claims that the investigation was legally non-compliant;

Improper Designated Investigator

Anytime an internal employee, including human resources personnel, is selected to investigate, the question of potential conflict of interest or bias will be raised if the investigator has any prior professional or personal relationship with any of the parties or key witnesses, the investigator is involved in the chain of command for either party, or has any involvement whatsoever with any of the issues being investigated;

Unqualified Designated Investigator

This is typically raised anytime the investigation deviates from state and federal legal requirements, recommended best practices and/or the investigator is not an employment attorney trained in conducting investigations who has performed previous investigations and received some sort of investigative and employment law training;

Issues with the Authenticity and Content of the Evidence Relied upon by the Investigator

The failure by the Company to properly select and preserve all potentially relevant evidence and collect electronically stored information (ESI) relevant to the investigation in a defensible manner (in its original state with metadata intact) jeopardizes the admissibility of the ESI the employer intends to rely upon if litigation follows.

Communications Regarding, Among, and Between Participants in the Investigation about the Investigative Process

Common challenges include lack of communication to the complainant employee and accused or failure to remove the accused, actual or potential witnesses from discussions and decision-making related to the investigation. Another example that reveals a flawed investigation includes failure to provide one or more of the parties a full and fair opportunity (for the record) to present and respond to the allegations will likely be raised in litigation or failure to communicate the findings and conclusions of the investigation to the parties at all, or improperly;

Factual Findings, Determinations, Conclusions Reached and Actions that Call the Entire Investigation into Question

Anytime factual findings, determinations, and conclusions are not reached at all, or are reached but the evidence relied upon does not support the findings, the entire investigation will be challenged. For example, if there are no findings or the findings are based on subjective and/or unsubstantiated credibility or the investigation fails to follow up on critical relevant evidence, etc, the entire investigation can be tainted. Even failure by the employer to take additional actions to minimize future issues from reoccurring or failure to monitor the situation after the investigation can put an employer’s investigation at issue;

Contents of the Investigation File and Record keeping Threaten the Employer’s Reliance on the Investigation

If the contents of the investigation file are not bulletproof, the entire investigation will be subject to attack. The file must document the investigation from start to finish, including documentation of intake, scope, investigative plan, moving the process forward, all relevant evidence requested and its details. Failure to document the investigative process from start to finish have successfully challenged employer’s investigations time and again.

Properly-Conducted Investigations Yield Significant Benefits Beyond Refuting Employer Liability

Every investigation must be performed by well-trained personnel who are not only qualified and competent, but also must present well to a jury, maintaining professionalism and keeping his/her composure at all times to withstand attacks of his/her investigation in the case of legal action.

Given the importance of the investigation to any employer in potential legal actions, an employer’s investigation stands a much stronger chance of withstanding scrutiny when an experienced outside investigator (preferably an employment attorney) is retained to conduct the investigation.

However, if an internal investigator is qualified, experienced, and no conflict of interest exists with the parties or issues, the employer should retain experienced employment counsel to direct the investigation under the attorney-client privilege, minimizing challenges to the investigation itself. If litigation follows, the employer will likely waive the attorney-client privilege, so that they can rely on it in litigation, but it is far more likely to withstand attack with counsel directing it.

It may cost a little more to conduct investigations with counsel involved, but the alternative could be substantial verdicts or enhanced settlements based upon inadequacies in the investigation itself that jeopardize the employers’ defenses.

Investigations directed or conducted by experienced employment attorneys like our team at Sherman Law Firm also provide additional benefits beyond supporting the employer’s defenses. These benefits include:

  • Deterring litigation attacking the investigation because the outside investigator, who has no ties to either party, will testify as a witness on the investigation if legal action follows;
  • An investigation that conveys a strong message to employees that their voices are heard, and that the unlawful conduct and retaliation will not be tolerated;
  • An investigation that provides an opportunity to educate employees and help solve problems within the organization;
  • An investigation that allows external investigators to uncover previously-unknown issues and present them to the employer to correct them;
  • Improving employee morale and productivity, no matter the outcome of the investigation, because the process itself renews employees’ self-worth at the Company and the process.

The Benefits of Retaining Our Experienced Employment Litigators

Lisa Sherman is certified to conduct complex workplace investigations by the Association of Workplace Investigators, where she is also a member and has presented as a speaker at its annual conference on digital evidence in workplace investigations. All of our employment law attorneys are well-trained in directing and conducting independent attorney-client privileged investigations.

Before you initiate your next investigation of a workplace matter, we invite you to contact us at (424) 249 -3631. We would be happy to discuss with you further conducting legally-compliant workplace investigations that protect your Company. Our initial consultation will cost you nothing.

Contact the Sherman Law Firm Today

Call the Sherman Law Firm at 424-249-3631 to schedule your free consultation today.

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