How to Handle Workplace Investigations: A Guide for California Employers

California employers have to contend with a multitude of compliance requirements. Many of these are not in place in other states. The Golden State has the largest state wage-and-hour state enforcement agency in the country. In addition, employers have to contend with a state legislature that has been quite active of over the past several years. They also have to content with a regulator, the California Industrial Welfare Commission, whose regulations have the force of law. When handling an EEOC investigation or other investigation, one of the ways to keep matters from ballooning into huge headaches is for employers to be diligent about investigating employee complaints of discrimination, harassment, and retaliation. Ignoring complaints has led to expensive legal actions for employers. Fast food chain Del Taco agreed to pay $125,000 in 2020 to settle allegations by the U.S. Equal Employment Opportunity Commission (EEOC) that women at several of its California stores were subjected to almost daily sexual harassment by a general manager and shift leader. The EEOC said Del Taco failed to respond adequately to the female workers’ complaints or stop the harassment or retaliation.

Other instances of EEOC lawsuits

In another instance, the EEOC filed lawsuits alleging that Cardinal Health, a global medical supplier, and Ryder Integrated Logistics, a subsidiary of the trucking giant, and their staffing firms, ignored harassment against African American employees in English and Spanish at their California warehouses, according to reporting in the L.A. Times. The EEOC said the companies did not take action in spite of dozens of complaints. The companies denied the accusations. They settled the claims. They agreed to offer training on harassment in English and Spanish and to submit to monitoring for verbal abuse, bias, and retaliation, the LA Times reported. In a 2019 lawsuit, the EEOC alleged that an Apple Park subcontractor ignored racist graffiti, a noose with a note attached, and worker complaints that they had been taunted by a coworker who used a racial slur. These and other allegations demonstrate the importance of promptly following up on employee complaints, especially in a state like California. A prompt investigation has many advantages. It can stop discriminatory behavior and send a message that the employer takes complaint seriously. Internal investigations can also be less disruptive than an EEOC investigation.

What does California law say about discrimination, harassment, and retaliation?

California’s “Fair Employment and Housing Act” forbids workplace discrimination, harassment, and retaliation. The law also requires that employers take reasonable steps to prevent and correct wrongful behavior. This behavior can include harassment, discrimination, and retaliation in the workplace.

Don’t ignore employee complaints

Employers should act swiftly when workers express concerns. Employers should determine whether the employee complaint involves behavior that requires a formal investigation. Some issues can be resolved by counseling the individuals involved or, if necessary, by reprimands. Complaints about matters that are more serious require a more in-depth inquiry.

Who should conduct the investigation?

In most instances, it is more cost-effective for HR to conduct the investigation. Under California law, the person who conducts a workplace investigation must be a licensed private investigator or someone who qualifies for an exemption. Generally, attorneys acting in their capacity as attorneys and a company’s HR staff qualify under the exemption. The person selected to conduct the investigation should be impartial.

What are the required steps in a formal investigation?

The Department of Fair Employment and Housing (DFEH) has offered suggestions for employers on how to conduct an investigation. DFEH recommends that employers:

• Conduct a thorough, in-person interview with the person making the complaint
• Give the accused person a chance to explain their perspective, preferably through an in-person interview. DFEH explains that the accused person has a right to know the allegations being made against them. The agency does suggest, however, that “it is good investigatory process to reveal the allegations during the interview rather than before the interview takes place.”
• Interview witnesses and review documents. Investigators don't have to talk to every witness or read every document. They should focus on the ones that relevant, DFEH says. "Relevant" refers to witnesses whose information could have an impact on the investigation and documents that could prove or disprove the allegations.
• Investigations can involve more than interviewing witnesses and reviewing documents. Investigators should be prepared to take pictures, view surveillance tapes, and visit the worksite.
• Document everything and keep the documentation.
• The investigator's findings should use the same standard courts use in discrimination and harassment cases. It’s called “a preponderance of the evidence.” As DFEH notes, it means that the investigator has found that it is more than likely that the alleged conduct occurred or more than likely did not occur.
• The conclusion should be reasonable and fair.

How long should the investigation take?

There is no set time that is optimal for concluding a California workplace bias or harassment investigation. Of course, it can be bad for employee morale and morale of the complainant if the investigation is “dragged out” indefinitely. It should end as soon as reasonably possible.

Confidentiality

Employers can only promise limited confidentiality. Complete confidentiality is rarely possible.

Retaliation

It's important to protect those who complain about workplace misconduct and those who take part in the investigations from retaliation. Inform complainants and witnesses that retaliation violates the law and violates the employer's policies. Employers should let managers and supervisors know that they will not allow retaliation. Supervisors should be on the lookout for signs of repercussions.

Retaliation can take many forms, including being fired or demoted, changes in assignments especially if the change is not to the complainant’s benefit or preference, failure to communicate, and being ostracized. Employers should check in with the complainant after an investigation has been completed to make sure the worker is not being subjected to retaliation regardless of whether misconduct was found.

Additional instances

There have been instances where a worker’s complaints of misconduct were not supported by evidence but the worker was able to prevail on a retaliation claim. A retaliation claim does not have to accompany or be supported by a claim of bias. It can stand on its own. For example, in 2018, a postal worker prevailed on a claim of retaliation even though her claim of discrimination was rejected by the court. Similarly, the sexual harassment claim of a Texas nurse was properly dismissed by the trial court but her retaliation claim merited further legal consideration, according to the U.S. Court of Appeals for the Fifth Circuit. The court sent the case back to the lower court for another look. The jury awarded the woman $100,000 for lost wages and benefits and $15,000 in compensatory damages, according to a blog post by Virginia-based employment law attorney Tom Spiggle.

Remedial action steps employers must take

Once investigators have finished the investigation, California regulations require that the employer take appropriate remedial steps if investigators have found misconduct. DFEH says this means that employers must:

• Take steps to stop the misconduct even if the behavior is not yet serious enough to violate the law
• Impose corrective action that is equal to the misconduct and that discourages or eliminates the behavior from happening again. Corrective action can include verbal counseling, training, “last chance agreements,” demotions, rescinding a bonus, salary reduction, demotions, reassignment, or firing.
• When imposing corrective action, employers should keep in mind what they have done in similar situations in the past. They should do that to avoid claims of discriminatory remedial measures.

Don't overlook misconduct or reports of misconduct

Overlooking misconduct or reports of misconduct can land an employer in “hot water.” That's especially the case in a state like California where employee-friendly laws are the norm. Employers should take worker complaints seriously. Conduct a prompt and impartial investigation and take appropriate corrective action if investigators find that there was misconduct.

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