Today’s companies face increasingly complicated legal hazards in their everyday relations with employees. Employers can reduce these risks by working to comply with the many changes to labor and employment laws and conducting prompt, thorough investigations into any reported misconduct. Payne & Fears labor and employment attorneys help companies uncover and resolve workplace problems before they can threaten the health of an organization. In our labor and employment investigative practice, we find that when a careful investigation is combined with swift corrective action or response, many issues can be resolved without litigation.
Labor & Employment Investigations: Process
Before any investigation occurs, employers must determine whether an investigation is necessary or desirable. Under California law, employers must investigate claims of harassment and discrimination falling under the Fair Employment and Housing Act (FEHA), and then, if appropriate, take prompt and effective action to prevent further inappropriate action from occurring in the workplace.
Investigations may also address misconduct or wrongdoing involving third parties, company property, violations of company policy, and/or other alleged violations of law. Companies should thoroughly investigate allegedly wrongful conduct that resulted or will imminently result in an adverse employment action or that exposes the company to civil or criminal liability.
There are several goals for an employment investigation. A fundamental goal is to stop any unlawful or inappropriate conduct and prevent its recurrence. Investigations support the corporate goal of maintaining a workplace free of discrimination, harassment, retaliation, bullying, unlawful, or simply inappropriate conduct.
An effective and competent investigation will determine the merits of the allegations, such that our clients can identify any appropriate remedial action, be it effective and appropriate discipline or other actions (when there is merit to the claim). The success of the investigation requires impartial, fair, thorough, and respectful behavior on the part of the investigator. Affected parties must be kept informed of the status of the investigation to establish confidence in the investigation and its outcome.
Choosing the appropriate investigator is also key to a successful investigation. Some companies may have in-house staff (e.g., human resources personnel, attorneys, or management) who are trained in conducting workplace investigations. Sometimes due to the complexity of the events necessitating the investigation, the desire to conduct an investigation under the attorney-client privilege, or to maintain the integrity of the investigation where there appear to be conflicts within internal resources, it is desirable to hire an outside attorney investigator to conduct interviews, gather evidence, and reach conclusions. The investigator, whether in house or retained, must be respected by both employees and management, capable of keeping confidences when appropriate, have time to devote to the investigation, and be able to assess possible outcomes without bias.
The investigative process often involves a comprehensive gathering of information. This starts with the complaining employee, and may include a review of relevant supervisor reports, written warnings, and other materials immediately demonstrative of the problem to guide their investigative process. The investigator will interview the complainant and some or all employees who have information and gather other evidence. Evidence may include, for example, correspondence, emails, social media, Slack or Teams messages, text messages, phone records, network and security logs, and voicemails. Once the evidence is gathered, the investigator must assess credibility and determine whether it is more likely than not that the complaint has merit. The company may then decide on any appropriate remedial action.
A determination that a complaint has merit, may require that company actions must be taken to correct the problem. If serious misconduct occurred, appropriate disciplinary action should be taken quickly. This will improve employee relations, protect the company and other employees from future harm, and may help the company avoid liability or mitigate damages. Following up with employees to ensure that the problem has been solved, and that there is no retaliation, is a key to the success of managing these difficult issues. Sometimes training may be required to fix systemic workplace problems.
Documenting the investigative process is important. The documentation, at a minimum, must include the complaint, any interviews conducted, the evidence gathered and considered, and the conclusions that were reached. It also should document the actions taken by the company to rectify the problem.
Labor & Employment Investigations: How We Can Help
Our attorneys have deep experience in employment investigations. We also train in-house lawyers, senior management, human resource professionals, and other members of management on how to conduct effective internal investigations with detailed information regarding:
- Determining the appropriate person to investigate the problem
- Creating and modifying an investigative plan
- How to effectively interview affected parties and witnesses
- Proper documentation of the investigation
- Assessing the results of the investigation