Many of you have commented about my post last week on the investigation into Governor Cuomo’s workplace conduct.  You pointed out that the external investigators made legal findings related to the Governor’s conduct (i.e., that he engaged in “sexually harassing conduct”), which is contrary to the investigation training our firm provides to HR professionals, investigators, and employment law attorneys.  That’s right.  Here’s the scoop…

In the California Department of Fair Employment and Housing’s “ Workplace Harassment Guide,” the Agency discourages investigators (particularly internal investigators) from making legal findings:

DO NOT REACH LEGAL CONCLUSIONS

It is considered a recommended practice for investigators to reach factual conclusions, not legal conclusions. Sometimes, internal investigators will also reach a conclusion regarding whether behavior did or did not violate a company policy. Note that violating a workplace policy is a different standard than violating the law, which is one reason that investigators should not make legal findings. This means that even if the allegation includes concerns about, for example, unwanted touching, an investigator should only reach findings about the facts and should not reach a conclusion about whether there was unlawful (or lawful) conduct. Conclusions should state, for example:

Mr. Jones says his boss (Mr. Foster) made numerous sexually explicit jokes during meetings, which Mr. Foster denied. Witness interviews confirm Mr. Jones’s allegations. Three witnesses recall hearing the jokes at meetings on several occasions. Therefore, a preponderance of the evidence supports a conclusion that Mr. Foster did tell sexually explicit jokes at meetings.

Some investigators (typically internal investigators) are also expected to decide whether a policy was violated. External investigators are usually not asked to make this determination since the employer is often in a better position to interpret its own rules.

In the above example, if the investigator were to make a policy violation determination the findings would also include:

 It is further found that Mr. Foster violated the company’s anti-harassment policy which prohibits telling sexually-explicit jokes in the workplace.

In the event the investigation does not uncover evidence to support the allegations, the conclusion should state that fact, such as:

Mr. Jones’s allegations against Mr. Foster are not supported by a preponderance of the evidence. This is because no witness recalls hearing the jokes described by Mr. Jones, even though they were present for the meetings in question. These witnesses appeared credible. They provided consistent information and appeared to have no bias for or against either party.

Interestingly, the Association of Workplace Investigators takes a more flexible approach to making legal findings. In its 2013 version of its “Guiding Principles,” the organization states that, “[a] investigator’s findings should be consistent with the scope of the investigation as defined by the employer.”  So, if an employer requests legal findings, then it may be appropriate for the investigator to provide them.

Several complications can arise when investigators make legal findings. First, an employer likely will be bound by an investigator’s legal findings. For example, if an investigator determines that one employee “sexually harassed” another, then in a subsequent lawsuit, the employer will be hard pressed to argue there is no legal liability (after all, its own investigator found a legal violation).  Also, reasonable minds will differ as to whether particular conduct violated the law.  If you have ever served on a jury, you know what I mean.  Moreover, the point of conducting an investigation is to determine if something occurred that needs to be addressed under the employer’s policy, not under the law.  Workplace policies impose a higher standard than the law.  That is, although making one inappropriate sexual joke won’t violate the law, such conduct certainly is inconsistent with a properly written EEO policy, and the employer is required by law to prevent the conduct from continuing.  Perhaps most importantly, an investigator who fails to firmly establish their qualifications to interpret and apply the applicable legal standards cannot successfully defend their legal findings.

For all of these reasons, internal investigators should never make legal findings. And, even external attorney investigators with substantial employment law experience should tread carefully.