The Obligation to Investigate and Context within Which it Arises
An employer’s obligation to conduct investigations arises in a number of contexts, including State and Federal discrimination and harassment laws. Under FEHA, an employer has an obligation to undertake immediate and appropriate investigations, and if violations are determined, to take appropriate remedial action. Employers have separate affirmative obligations to take reasonable steps to prevent discrimination and harassment in the work environment. Further, good faith investigations are necessary with respect to alleged misconduct pursuant to Cotran v. Rollins Hudig Hall International, Inc. (1998) 17 Cal.4th 93 and its progeny. Additionally, investigations are often needed to determine whether organization policies have been violated and the extent/severity of such violations.
The Significance of the Obligation to Investigate
California courts have held that it is normally a question of fact as to whether an employer’s investigation is “adequate,” but we know that obligation encompasses review of all appropriate documents, interview of all appropriate witnesses (including those who may offer exculpatory information) and a fair process that allows an employee accused the right to be informed of allegations and respond. The failure to conduct such an “adequate” investigation by the employer has been held to be “evidence of pretext” in connection with the termination or other adverse actions taken.
We believe that an “adequate” investigation is essential both to seeking compliance with law, providing a positive working environment to employees and limiting employer liability. When investigations are carried out with professionalism and for the purpose of fact finding, employees are made more comfortable and do not feel ambushed. At the same time, seeking pertinent facts allows the employer to act as needed to honor legal obligations and make efforts to avoid liability. California courts have held that it is normally a question of fact as to whether an employer’s investigation is “adequate,” so investigations must be undertaken objectively and as completely as possible.
Over the past 30 years Mr. Warren has been involved in working on innumerable employee/employer issues, advising on employee matters, reviewing investigations, speaking on investigations and, in a large number of cases, successfully attacking inadequate investigations. He brings that experience to conducting and reviewing investigations as needed by the parties in hopes of securing full resolution of issues extant or aiding in fulfilling employer investigative obligations.