Workplace Investigations in California: How Employers Can Handle Harassment and Misconduct Complaints To Decrease Liability

As soon as an employee steps forward and complains of harassment or misconduct, how you handle the situation can mean the difference between protecting your organization and winding up in costly litigation. In California, a state with some of the strictest labor laws in the country, getting an investigation right is not just good sense, it constitutes much-needed legal protection.

The truth is that nearly all employers will eventually have to deal with workplace complaints of some kind. Whether it’s sexual harassment, discrimination, retaliation or any other sort of misconduct, the way you respond to an initial complaint will determine what happens next. A good workplace investigation can help you get to the bottom of issues early, show that you take a safe workplace seriously and cut down your organization’s liability.

Why Proper Workplace Investigations Matter in California

Under the California Fair Employment and Housing Act (FEHA), California employers are required to take reasonable steps to prevent and correct harassment and discrimination. When an employee complains or you are otherwise on notice of an issue, you’re legally obligated to investigate. But employers may not realize that how they conduct such an investigation can be used for or against them in a lawsuit.

California’s courts examine carefully whether employers took complaints seriously and handled them appropriately. A prompt, comprehensive workplace harassment investigation is evidence you’re fulfilling your legal responsibilities. Conversely, a late or one-sided investigation can be introduced as proof that you did not take steps to stop or remedy the purported wrongdoing.

Outside of legal compliance, there are good practical reasons to conduct thorough, impartial investigations. An evenhanded and complete investigation can help you decide how to discipline, maintain morale in the workplace and protect your company’s image. It also makes it loud and clear to all employees that complaints are taken seriously, and bad behavior won’t be tolerated.

Key Steps for Conducting an Effective Workplace Investigation

Act Quickly and Document Everything

Time matters. An employee complaint need not be in writing to trigger an investigation.  Notice may also come in other forms (e.g., office rumors concerning an incident of sexual harassment).  You will need to look into the issue fast and ideally within 24 to 48 hours. If nothing else, delays can mean evidence disappears, memories fade and the situation gets worse. But more importantly, delays can communicate to employees and even courts that you don’t take complaints seriously.

Document every single thing from the time you are first  given a complaint or become aware of a potential issue. Write down a record of when it was received, who reported it, what was claimed and everything you do in response. This documentation will be vital if you find yourself later having to justify your actions in a court of law or with a government agency.

Choose the Right Investigator

The choice of workplace investigator matters a great deal. The investigator should be trained in how to conduct workplace investigations, knowledgeable of California employment law and not have personal involvement in the situation being investigated. And depending on how serious and contentious the allegations are, you may need to find an impartial workplace investigator from outside the company.

At the higher end of the spectrum, when allegations are serious, or concerned specifically with executives, potential criminal conduct, or where office politics might compromise objectivity, you might want to consult an employment defense attorney, or bring in a third-party investigator. This makes parties aware that you are conducting a fair hearing and adds credibility to your decisions.  BMK attorneys are available to conduct prompt, thorough, objective, unbiased, outside workplace investigations for your company.  Partner Gabrielle Korte is an Association of Workplace Investigators Certificate Holder (AWI-CH), after having attended and completed the AWI Training Institute.

Interview All Relevant Parties

A thorough workplace investigation requires talking to everyone with relevant information. Start with the complainant to get a detailed account of what happened, including specific dates, times, locations, and any witnesses. Make sure to ask open-ended questions and let them tell their story without interruption.

Next, interview the accused employee. Be professional and neutral, present the allegations without revealing the complainant's identity if possible, and give them a full opportunity to respond. Remember, the goal is to gather facts, not to accuse or judge.

Finally, interview any witnesses or individuals who might have relevant information. Don't limit yourself to people who directly observed the alleged conduct; talk to anyone who might have information about the workplace environment, the relationship between the parties, or relevant behavior patterns.

Gather and Preserve Evidence

Aside from testimony, gather evidence that’s physical or electronic in nature. This could be e-mails, text messages, personnel records, security tapes, or any other form of documentation tied to the allegations. In the modern digital office, most of that evidence will live on someone’s computer (or web server), so make an effort to preserve emails and electronic communications before they disappear into the memory hole.

It is important to keep the incident as private as possible. Only give information where it is necessary, and remind each person that they need to be discreet. Do not make the mistake of committing to complete confidentiality, because you may be required to share information in order to effectively investigate or respond.

Common Mistakes That Increase Employer Liability

Even well-meaning employers can put themselves in a situation that goes from  manageable to becoming an employer’s legal nightmare. Here are some commonly encountered pitfalls to be avoided:

• Waiting too long to launch the investigation: Every day you wait sends the message that the complaint does not matter. Begin your workplace investigation right away, even if you need to call in outside assistance.

  
  

• Selecting an untrained or biased investigator: An investigation by a friend of one of the parties, an interested party, or someone who is not familiar with employment law in California can do more damage than good.

  
  

• Failing to keep detailed records: If you don’t have a record of what you did, when and why, it’s hard to defend your actions further down the line. Everything you say should be written down: all interviews, decisions, evidence.

  
  

• Taking action against the complainant: This is just about the quickest way to compound your troubles with a retaliation claim. Under California law, it is illegal to retaliate against employees who report harassment or discrimination. If you would like help on how to protect against retaliation, working with a workplace retaliation defense law firm or an outside attorney workplace investigator can be immensely helpful.

  
  

• Making premature conclusions: Don’t rule what happened before you’ve heard all the evidence. Maintain an open mind during the investigation and let the evidence guide you to a conclusion -don't try to force your way.

When Should a Lawyer Be Consulted?

Don’t jump into the fray just yet. While not every workplace complaint calls for immediate legal action, it’s important to know when your company may need an employer defense attorney and when mistakes of all sizes could lead to big problems down the road.

Consider seeking legal guidance when:

• The accusations are serious or possibly criminal, such as sexual assault, physical violence or theft. These situations must be handled with caution, and can implicate reporting duties to the police.

  
  

• The complaint concerns executives or other senior workers. They also often involve extra levels of care because of the power dynamics at play and the risk that employees or other critics might claim that internal investigators couldn’t be independent.

  
  

• The complainant has already filed a charge of discrimination with DFEH (which is now called the Civil Rights Department) or EEOC, or has threatened to file. Once an employee has filed suit, you need skillful legal representation to defend your rights.

  
  

• The situation presents complicated legal issues or a risk of serious liability.

  
  

• Employment defense lawyers can provide advice about how to navigate the legal landscape and ensure that your company’s actions match up with the law.

  
  

• You don’t know what to do or what your responsibilities are. It’s always safer to seek legal advice early than to try correcting mistakes after the fact. When many employers go to Google and enter the words "employment lawyers near me" for the first time, gaining access to savvy advice sooner rather than later can prove transformative.

Creating a Culture of Accountability

The kind of workplace investigation that’s best is the one you never have to do, by preventing problems before they become big problems. While investigations are sometimes necessary, the development of a culture in which harassment and discrimination is not condoned can go a long way to minimizing an employer’s potential exposure.

This process begins with well-written policies that specify what does and does not constitute harassment, discrimination, and retaliation, as well as the process that will be used to address complaints. Ensure that every staff member is aware of these policies and knows how to report any issues.

Regular training is also essential. California law mandates that employers with five or more employees give sexual harassment prevention training to all of their workers. But training should not just be a one-off check-the-box routine. Use it as a chance to reaffirm your commitment to a respectful workplace and ensure that everyone knows their rights and obligations.

And above all, don’t overlook any complaints and institute the necessary measures. When employees feel complaints will be handled fairly and that bad workplace behavior has consequences, they’re more likely to report problems when they first come up: at a time when they can be most easily addressed.

Bottom Line: The Right Way to Investigate and Protect Your Business

Workplace investigations aren’t simply a matter of compliance; they’re about protecting your business, employees, and reputation. Help them the right way, and they can help you discover and solve problems before they escalate into costly litigation.

You need to move fast, delve deep, and document your work. Know when to get experienced help to navigate more challenging circumstances, and do not make the mistake of viewing investigations as a nuisance. Instead, treat it the way you would any other kind of brand experience or reputation threat to show your commitment to a safe and respectful workplace.

Whether you are dealing with a workplace complaint or you need to make sure that your investigating protocol is legally sound, our attorneys have over three decades of experience in defending employment matters at Brereton Mohamed & Korte LLP. That is because we know California employment law backwards and forwards, helping Santa Cruz area employers to get a handle on workplace investigations and reduce their vulnerability.

Frequently Asked Questions About Workplace Investigations in California

1. Investigation: How soon after I receive a complaint should I commence an investigation?

You want to start your investigation as soon as possible, preferably between 24 to  48 hours of learning about the complaint. Quick action shows that you take the complaint seriously, and can help save evidence before it disappears. Delay can be seen as ignoring the complaint and will weaken your defense if you end up in court.

2. May I do the investigation or must I get an outside investigator?

It depends on the situation. For simple complaints about low-level employees, an internal HR person or a trained manager is sufficient. But for allegations that can cause significant harm, involving someone in an executive role  or are seen to lack neutrality, using an outside investigator or an employer defense attorney is often the right call. An outside investigator adds legitimacy and can also help ensure the process is impartial.

3 . What if the investigation finds that the complaint was groundless?

If your investigation determines that the allegations were unsubstantiated, provide a detailed description of your findings, along with an explanation of why it was reached. However, you will want to disclose the outcome of the investigation to the complainant (subject always to maintaining confidentiality wherever possible) and take steps to ensure that no retaliation is taken because people made a complaint. Even if the complaint was not substantiated, the employee has a right to lodge their concerns with the employer, and  stay protected from retaliation for doing so.

4. Do I have to maintain the anonymity of the complainant?

You must do the best you can, however, you cannot promise the secret to remain 100% safe. You will likely have to disclose information about the victim’s claim, if any, to the accused employee and potential witnesses in order to conduct a comprehensive investigation of workplace harassment. What you can and should do is restrict disclosures to strictly those who need to know, and caution all around about the importance of discretion. At the beginning, be clear to the complainant about the degree of confidentiality.

5. What is the proper remedy if it is found through the investigations that there was wrongdoing?

Corrective measures should be commensurate with the offense and reflect your prior course of dealings. Sanctions can also instruct employees to undergo a course of action, including mandatory training and warnings; suspension or demotion; or termination. The crucial point is that the activity should be such as to stop the wrongful act and not to allow it to happen again. Whatever you do, write down your justification and enforce it across all cases of that type.

6. If I did a thorough investigation, can I still be held to blame?

A fair workplace investigation goes a long way toward limiting your liability, but it doesn’t erase it completely. Under California law, there is a duty to prevent wrongful behavior as well as take proper remedial measures once such conduct takes place. But if you can show that you treated the complaint seriously, investigated thoroughly and without bias, and took proper remedial action, then you will be much better able to defend against claims of harassment or hostility in your workplace. 

7. How long do I need to keep records of my investigations?

Retain all records collected during an investigation for a minimum of three years, the statute of limitations for most employment claims in California. If they are severe allegations or situations that could lead to litigation, you may want to keep records longer. Keep investigation reports in a separate folder from standard personnel files and control who has access to keep them confidential. Those reports may be useful evidence in the event you’re forced to defend your actions later.