Managing Workplace Investigations

In California, Employers have a duty and obligation to investigate workplace harassment, abusive conduct, discrimination, and bullying claims. Employers are also required to take actions necessary to resolve the situation and prevent any further discrimination or harassment from occurring.

This is important…the law has changed recently to dictate who can actually investigate a situation related to this various conduct. Only a state-licensed or officially trained person should conduct workplace investigations. Read on for further details.

How to handle a workplace investigation

Understand the complaint. With any claim or complaint, the company has an obligation to investigate the matter. Every situation must be measured as to its severity and credibility, so initial steps should be taken immediately upon receiving a complaint or becoming aware of an issue. The first steps should be to question the complainant, see if there are any witnesses, and then determine if this is serious enough to warrant a deeper investigation or not. If it is determined that there is credible indication that questionable conduct has occurred, you must decide how you will launch an investigation.

Selecting the investigator. To start the process out, it's very important to select the right investigator to handle the investigation. If someone internally will handle the investigation, they must be officially trained, or better yet, certified. Their training and experience should be carefully considered because this person’s experience and training will likely be closely examined, if not challenged by opposing counsel if the case develops into litigation

As to the use of an external investigator, under the California Business and Professions Code Section 7520-7539, an outside investigator must be a state-licensed private investigator or state-licensed attorney. Human resource consultants who are not licensed attorneys or private investigators cannot legally conduct such investigations.

Infinium HR has multiple resources for certified investigators, and can provide guidance on options for training available that offer Human Resource Certification Institute (HRCI) certification.

Investigation Free from bias. The investigator must not have any personal involvement with any of the parties who are a part of the investigation.  The investigator must not be subject to any control or supervisory control from the accused. This means that for smaller companies, or in cases where the owner or president of the company is alleged to have harassed someone, it is recommended that an outside third-party that is independent from the company be hired to conduct the investigation.

Concluding the process. Once a credible investigation has been completed, and management has been able to review the findings, they must decide as to what the resolution will be. The resolution must clearly resolve the situation and all parties involved will need to be informed of the determination.

Even if the employer determines that harassment or discrimination did not occur, EEOC guidance suggests that the employer should take steps such as preventative training and continued monitoring.

An important step before an incident occurs in your workplace, is to ensure your existing employees have gone through the state mandated harassment prevention training, and that all new employees are trained at least one hour every two years, and for supervisors, 2 hours every 2 years.

Infinium offers this harassment prevention training free to its clients, and very affordably to non-clients. Please visit https://www.infiniumhr.com/harassment-prevention-training/ for more information, or contact us at hrsupport@infiniumhr.com