Non-Employment Lawyer Guide: Navigating Workplace Investigations
If there is one thing true for all lawyers, it is that there will come a day (or many days) when you are asked a legal question outside of your practice area. Your neighbor has a question about their insurance dispute or a distant relative wants to know about how to handle a fender bender. It doesn’t matter if you’ve ever talked “law” with them in your life, if they know you are a lawyer, they are going to expect you to handle all things legal.
ABA Model Ethics Rules provide that U.S. lawyers have certain ethical obligations to only advise on issues for which they possess knowledge and skill.
Responding to clients, friends, and family that certain legal questions are not within your practice area may be an easy approach, but there still may be ways non-employment lawyers can help guide those in need of assistance in getting on the right track.
Welcome to Working Outside the Box Blog's Employment Guides for Non-Employment Lawyers. Today’s blog focuses on workplace investigations.
A Concern about an Issue in the Workplace
Whether you call them employee investigations, employee misconduct investigations, workplace bullying investigations, employee grievance investigations, or employee dispute investigations - all these investigations typically arise from a similar scenario: a concern about an issue in the workplace.
When might questions about workplace investigations arise? Perhaps you have a family member who is a business owner and they need to know how to handle an employee complaint. Or maybe you are General Counsel to a company facing an employee complaint but do not have in-depth experience in employment law. Or possibly you are helping a business owner client on an unrelated matter and they complain of employee misconduct in the workplace. All of these situations should trigger the ”workplace investigation” light to go off and give rise to the question of whether an investigation needs to be conducted under federal law.
Workplace Investigations Usually Start with a Complaint
Most often, the question about whether to conduct a workplace investigation arises from an employee complaint. Many federal laws (as well as state laws) provide an affirmative duty to investigate certain issues in the workplace. For example, under federal law, Title VII of the Civil Rights Act of 1964 requires an employer to "take all steps necessary to prevent harassment from occurring." The Equal Employment Opportunities Commission (EEOC)'s Enforcement Guidance for Employer Liability recognizes that "if the employer has an adequate policy and complaint procedure but an official failed to carry out his or her responsibility to conduct an effective investigation of a harassment complaint, the employer has not discharged its duty to exercise reasonable care." (emphasized).
As another example, the Occupational Health and Safety Administration "strongly encourages employers to investigate all incidents in which a worker was hurt, as well as close calls (sometimes called "near misses"), in which a worker might have been hurt if the circumstances had been slightly different." (See OSHA regulations).
Under certain state laws, like California law, the California Federal Employment Housing Act (FEHA) (Calif. Gov’t Code Section 12940(j)(1) and (k)) requires employers to "take all reasonable steps to prevent discrimination and harassment from occurring."
Federal courts have concluded that an employer's failure to take immediate action in response to an employee's complaint may raise a reasonable question of fact for a jury. Conducting workplace investigations in these scenarios can help an employer decide what sort of immediate action needs to take place to remediate the situation.
But What About If There is No "Formal Complaint?"
While workplace investigations often start from a complaint, there does not have to be a “complaint” to trigger an employer’s obligation to conduct a prompt investigation. For example, there may be a situation where an employee talks with a manager about a “concern,” but stresses that they do not want to “file a formal complaint” or “escalate” the matter. Or a manager observes questionable conduct by an employee. Under federal law, an employee does not need to submit a "formal complaint" to put an employer on notice of a discriminatory or harassing activity - it may be based on an employer's observation or an employee's conversation with a manager (manager's knowledge can be imputed to the employer), as examples.
Beyond Legal Requirements: Why Workplace Investigations are Important to Workplace Culture
Not only is a workplace investigation required under federal (and most state) law when an employer is put on notice of potential illegal activity, but investigating potential misconduct is good business practice. Workplace investigations can:
Help employers identify and address potential problems or misconduct within the workplace.
Help ensure the workplace remains safe and productive for all employees.
Help protect the company from potential legal action or provide legal defenses.
Help maintain a positive and healthy work culture.
When employees are assured that their employer is committed to addressing potential issues in the workplace, it helps to foster a sense of respect and trust. It can also show employees that they are valued and supported and create a culture of accountability and transparency.
How to Conduct a Workplace Investigation: The Basics
An effective workplace investigation should be efficient, fair, and unbiased. It should also be prompt and thorough.
Deciding Who Conducts the Investigation
Though the law does not require a company to use an outside entity for an investigation, an employer proceeding with a workplace investigation should give special consideration to the person who will be investigating to determine whether using someone in-house (like on the employer’s payroll) is the best decision. While external workplace investigators may provide the benefits of objectivity, expertise, and legal compliance, there are also benefits to using someone in-house in certain circumstances. Benefits of using an in-house workplace investigator include cost as well as intimate knowledge of the company’s policies and procedures. For further considerations of using an in-house or external workplace investigator, see our blog post, here. Consider that under many state laws, not just any professional can legally conduct a workplace investigation. Certain states regulate individuals authorized to conduct workplace investigations such as licensed private investigators, in-house employees, or licensed attorneys. Remember to check state statutes for regulations applicable to workplace investigations before retaining, recommending, or referring an individual or entity for a workplace investigation.
Gather Relevant Evidence
A thorough investigation should include a review of relevant documents and potential evidence such as communications (emails, texts, intra-office communications like Slack) as well as policies and HR records. A company may have policies in place that entitle the employer to monitor and access certain electronic devices, which can help gather evidence (such as a company-issued computer or company email). But beware, some states may have certain privacy regulations about an employer’s access or entitlement to certain employee information. Be sure you know the laws applicable to the state where the employee is working.
Gathering relevant evidence will likely also include interviews with relevant witnesses who may have information about the situation.
Document Findings and Conclusions
Findings and conclusions should be documented clearly and concisely. A report may also include recommendations for relevant parties and notification to the complainant and/or the respondent (party accused of wrongdoing) of the outcome of the investigation (if applicable). Federal (and most state) law requires prompt remedial action in the event of discovery of potential discriminatory activity.
Conclusion
If you are a non-employment attorney with questions about best practices or procedures for workplace investigations, contact a qualified workplace investigation attorney before advising your client.