A workplace investigation is conducted when there is credible information that there may have been significant wrongdoing, misconduct, or ethical lapses. A workplace investigation may also be appropriate even if there have not been specific allegations against an employee or department, but there have been allegations against others, and the investigation is intended to exclude the possibility that wrongdoing occurred within the organization.
In California, workplace investigations must be conducted by qualified individuals to ensure legal compliance. Qualified individuals include internal Human Resources professionals, in-house counsel, licensed private investigators, and other qualified individuals working under the direction of or by, outside attorneys.
It’s important to note that workplace investigations are required when an employer “knew or should have known” of an allegation of harassment, discrimination, or retaliation. Investigations must be timely, thorough and fair and result in prompt corrective action. Workplace investigations do not always result in termination of employment. After a determination is made upon completion of the investigation, corrective action may include, but is not limited to, training, coaching, disciplinary action, suspension, termination or a combination of remedial measures.
An effective investigation process protects the interests of the organization and its members or shareholders by preventing and detecting misconduct and violations; ensuring that business activities comply with applicable laws and regulations; and identifying areas of improvement. Investigations are fact-finding processes to determine, fully and credibly, what happened with respect to a particular incident- whether suspected conduct did or did not take place; what the circumstances were; who was involved, and whether a violation of law or company policy occurred.
Workplace investigations must be conducted in a manner that is perceived to be thorough, independent and impartial. They are designed to ensure that all appropriate witnesses are interviewed and all relevant facts and information uncovered. Confidentiality is critical when conducting workplace investigations. Organization may initially commence with an internal investigation. However, oftentimes it is wise to retain an unbiased third-party with no prior relationship or history with the individuals involved to serve as an outside investigator to conduct the needed investigation.
The investigation process includes a review and analysis of documents relevant to the investigation such as written documentation of the complaint, employee handbook including policies and procedures, personnel policies, relevant emails and other documents. Telephone or zoom interviews are conducted and are designed to ensure that all appropriate witnesses and all relevant facts are uncovered. It is important that the investigation is prompt, thorough and well documented to enable the company to draw reasonable conclusions.
Scherer Smith & Kenny LLP remains available to assist you with these and any other employment law-related questions you may have. For additional information concerning workplace investigations, specifically, please contact me at bobbi@sfcounsel.com
or one of the attorneys in our employment counseling and litigation department including Denis Kenny at denis@sfcounsel.com.
– Written by Bobbi Lambert, M.A., Ph.D.