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Workplace Investigations Attorney Orange County and Anaheim CA

The Law

The California Supreme Court’s January 1998 decision in Cotran v. Rollins Hudig Hall International, Inc., 17 Cal. 4th 93; 69 Cal.Rptr. 2d 900 (1998) is perhaps the most significant development in the investigation area –at least in California.  In that case, the Court determined that, when an employee is terminated for workplace misconduct (e.g., for allegedly having committed sexual harassment) and later challenges the termination as a breach of implied contract not to terminate employment except for just cause, the role of the jury is not to determine whether the employer was correct in its assessment that the employee had in fact committed the harassment.  Instead, the proper role for the jury is to determine whether, in making its determination, the employer conducted an appropriate investigation and reached reasonable conclusions based upon that investigation.  In other words, the question is whether the company acted in “good faith”.

Sometimes with no notice beforehand an employee will be informed to “go home” pending an “investigation”. While this sometimes may be appropriate to allow an employer time to investigate – this can also be done with the wrong motives.  To ensure that a fair and impartial investigation was conducted employers should followed the following guidelines.

Promptness

A company’s response to harassment allegations must be diligent and timely. If you’ve brought a concern several times and heard nothing back, this may be a signal that any resulting investigations may not yield favorable results.  “As soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary.” If so, it should be “launched immediately”. Similarly, the investigation should be completed immediately — but the amount of time to complete the investigation will depend on the “particular circumstances” — for example, the number of individuals involved in the investigation will affect the time needed to complete it.  Also if the matter that your involved in is not overly complex, your employer should get you answers sooner than later.

Impartiality

The Investigation must be an “impartial” one.  “The employer should ensure that the individual who conducts investigation will objectively gather and consider the relevant facts.” The goal is to promote “neutrality in any investigation.”  Such a neutral investigation may be conducted by using someone from the “employer’s human resources department or other neutral entity.”

Unfortunately not every employer will remember this very important element of workplace investigations. If the concerns you brought forward involve the investigator there will be a natural conflict of interest. Removing bias is an important part of any investigation concerning the workplace. Similarly, if  you feel the person who is harassing you has leverage, control, or influence on a decision maker, this will also lead to employer liability if the proper safeguards are not taken.

Confidentiality

“An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible.  An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses.” [After all, the employer must ensure that “the [accused] employee had a truly meaningful opportunity to tell his or her side of the story and to influence the employer’s decision.” “However, information about the allegation of harassment should be shared only with those who need to know about it.  Records relating harassment complaints should be kept confidential on the same basis.”

Too often employees will gossip about the personal matters of coworkers. While some gossip is almost impossible to avoid, management should not engage in such conduct. Moreover, when an investigation is taking place, confidentiality is very important.

Training

The person who conducts the investigation “should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility.” This is probably the most common mistake at the workplace. Not anyone should handle workplace investigations. For all the reasons listed her, it’s imperative that whomever is investigation is familiar with the applicable employment laws and obligations of both the employee and employer to reach a sound decision.

How can someone conduct a great workplace investigation on harassment if they know nothing about the law or rules?

How can someone investigate medical leaves if they no idea about disability laws?

Thoroughness

“[A]n employer should set up a mechanism for a prompt, through, impartial investigation into alleged harassment.” If you feel that the investigation is not taking into consideration everything, you should mention it. In fact the decision to not take into account everything may be intentional in hopes of not finding information to support your decision.

Determining Credibility

“If there are conflicting versions of relevant events, the employer will have to weigh each party’s credibility.  Credibility assessments can be critical in determining whether the alleged harassment in fact occurred.” “[R]esolution of close factual questions [involves] difficult evaluations of witness credibility and hard choices among conflicting inferences.”

If your concerns have gone ignored, you should contact our Anaheim Workplace Investigations Attorneyoffice before you quit to explore your options. While no one should tolerate an abusive work environment, taking the time to speak to an attorney may significantly help you moving forward.

Our Orange County Workplace Investigations Attorney office has successfully resolved hundreds of work related complaints.

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Eldessouky Law - 2017 - 2018
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