It’s Monday morning, you’ve turned on your laptop and are ready to take on the week, when an e-mail appears in your mailbox with a subject line you can’t ignore: “WORKPLACE COMPLAINT.” Your heart feels like it drops into your stomach. You know you have to read the message. But in reality, you really don’t want to know what it says. The complaint is from a junior-level employee who has been with the company for less than one year. She claims that her manager, a long-time, valued employee, has been making sexual passes at her which makes her uncomfortable. She alleges that her manager continuously asks her out on dates, asks her if she is married, brushes up along her body when he walks past her, and sends her text messages after work. The employee alleges that her female co-workers have told her they’ve experienced the same treatment from this manager. The employee writes that she can’t tolerate the treatment any longer, and that it’s becoming unbearable for her to continue coming to the office. So, what do you do?
Duty to Investigate Under California Law
Under California law, you can’t simply look the other way, or hope that the issue resolves on its own. In fact, employers have an affirmative duty to take reasonable steps to prevent misconduct (i.e., harassment, discrimination, retaliation) from occurring in the workplace. This obligation is particularly triggered when the employer becomes on notice of potential misconduct, as it is in the above hypothetical. To satisfy this obligation, the most effective and immediate measure an employer can take is to conduct a prompt, fair and thorough investigation at the outset of receiving a workplace complaint.
Using an Internal Investigator
You’ve decided to investigate the complaint – but where do you start? You could conduct an internal investigation, whereby someone from your organization investigates the allegations. However, there are downsides to this. For instance, the employees at issue, and employee witnesses, may not feel comfortable speaking with someone they know and work with. Further, if the investigation becomes challenged at a later time, such as in litigation, the investigation may look biased. Someone questioning the investigation could claim that the person conducting it had a particular interest in its outcome because they work for the company. Another pitfall to using an internal investigator is that the employee conducting the investigation may not be qualified to do so.
Hiring an Outside Investigator
The second option would be to hire an independent, third-party investigator. The Association of Workplace Investigator’s guiding principles state that, when deciding to conduct an investigation, “The investigator should be impartial and objective, and have the necessary skills and adequate time to conduct the investigation.” Among the benefits of hiring an impartial investigator is that the person is someone who doesn’t know the employees, has no interest in a particular investigation outcome, and who – upon being challenged – can legitimately represent that the investigation was impartial. While hiring an outside investigator may feel intimidating or excessive, it’s a good way to fulfill your legal obligations as an employer, and to ensure an effective outcome. And, for employees like your junior subordinate and manager referenced above, an outside investigator can give them the platform they need to speak openly and honestly about their experience.