Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Beatriz Berumen | The Daily Recorder | Jan 22, 2016

A timely, sufficiently thorough, impartial, investigation, when accompanied by prompt and appropriate remedial action, is an important part of an employer’s human resources and risk management program. Appropriate investigations allow management to make effective decisions, and may prevent litigation or mitigate exposure in employment law matters.

Poorly conceived or cursory investigations, on the other hand, may discourage complaints, and deprive an organization of the ability to address workplace issues. In fact, plaintiffs in some employment law cases have argued that an inadequate investigation itself is evidence of wrongdoing. For example, in Mendoza v. Western Medical Center Santa Ana, an employer fired both a supervisor and subordinate in a “he-said/he said” harassment case. The employee hired an expert who found fault with the investigation, including its scope and methods. Even though a more thorough investigation might not have revealed more facts, the court of appeal refused to find that the employer’s investigation justified its decision to terminate the complainant/plaintiff. The Court noted the employer’s investigation suggested that it “did not value discovery of the truth so much as a way to clean up the mess that was uncovered when [the employee] complained.”

The Duty to Investigate?

Employers may fail to investigate timely because they are unclear when they are obliged to do so. For example, supervisors may believe an investigation is not required unless the employee submits a “formal” complaint, or the employee refuses to make a report in writing or follow another specified procedure. Supervisors also may not report an incident when a complaining employee asks the supervisor to keep the matter confidential or suggests a report is “not a big deal.”

Supervisors are the “first responders” in many workplace matters that lead to litigation. Their timely involvement can forestall or prevent a minor problem from escalating into a big one. Employers should invest the time and money needed to train supervisors to identify “reportable” issues, to understand their obligations to report, and to overcome their reluctance to do so.

Employers should not impose rigid requirements on employees who may wish to submit a workplace concern. Many employees are fearful of “making waves.” Requiring a written complaint, or to follow a chain of command, can result in ignored reports that lead to later liability. Of course, even though a written statement may be helpful to identify the conduct to be investigated, employers will not be relieved of their legal duty to promptly investigate potential unlawful conduct if an employee refuses to provide one.

Where Does an Employer Start?

Not every employer has the resources to employ a professional investigator, and not every complaint merits one. Employers, particularly those with smaller operations, may have to assign supervisors or managers to investigate employee complaints. But investigations conducted by someone closely associated with the complainant or alleged wrongdoer are susceptible to attack as biased. For example, a manager may be less inclined to find that a direct report has violated company policy, whether because of pre-conceived opinions about the complainant or accused, because the manager does not wish to lose the report, or maybe fearing that a finding against the subordinate reflects negatively on the manager.

To mitigate against conflicts, it is best if the investigator is not within the complainant’s or alleged wrongdoer’s chain of command, and does not have a prior history (e.g., prior conflicts) with the primary people involved, including key witnesses. It also is important to ensure the investigator is not the same person who will decide any action to be taken based on the outcome of the investigation.

To the extent possible, an investigator of a workplace problem should be trained how to investigate. Even a small employer should have some basic parameters governing how to investigate facts and come up with a reasonable conclusion. The larger the employer, the more a third party will expect. When the issues involved are more complex, the stakes are high, or the person accused is high up in the organization, it is important for employers to consider seeking professional help, such as an outside investigator.

A trained investigator will develop an investigation plan appropriate to the issues involved. When interviews are necessary, outlines and documentation are important. And if findings of fact are required, they should be documented and supported in a clear, objective way. Consistency, adequate training, and written policies generally lead to better, more objective, and therefore, more effective investigations.

Missing the Point

As the Court pointed out in the Mendoza case, the point of an investigation is to find the truth; typically to determine whether there has been a violation of a policy. Employers should expect a later plaintiff to attack an investigation as insufficiently thorough to achieve that goal. What is thorough depends on a variety of factors. At minimum, the investigator must be ready to ask tough questions (i.e., “Did you do it?”), interview witnesses who may contradict the accused wrongdoer, follow-up if new information develops, and reach reasonable conclusions supported by these data. Investigators should avoid common mistakes, such as failing to confront the alleged wrongdoer with direct questions about the allegations to obtain specific denials (or admissions) about the allegations; ignoring former employees (or third parties) if information cannot be obtained from other reliable sources; or resolving factual conflicts between witnesses by circling back to re-interview if needed.

Tips for Employers

Courts will generally not second guess an employer’s personnel decisions when the decision is supported by a good faith investigation that is appropriate under the circumstances. Timely, impartial and well-executed investigations therefore reduce an employer’s risk of liability for wrongful termination or retaliation claims.

Employers should properly train their supervisors about their internal complaint and investigation policies. In some cases, investigations merely involve asking a few questions of limited people, or reviewing documentation that renders obvious the outcome of a complaint. Sometimes, though, an “appropriate” investigation must be conducted by trained investigators according to written policies and procedures that are consistently applied. Without training, management will not know how to spot the tough cases and how to respond to them properly.

Sometimes employers may have to hire third parties, depending on who is involved and what is at stake. Employers should ensure they understand what makes a third-party investigator qualified, should the need arise.