Workplace Investigations Blog

Workplace Investigations Blog

A Guide To Investigating EEO Complaints & Other Wordplace Problems

Category Archives: Investigation Tips

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Laws Requiring Harassment and Discrimination Investigations

Posted in Sexual Orientation, Why Conduct Investigation?
Harassment and discrimination investigations in California should be conducted by the employer whenever the alleged victim contends that the wrongful conduct was motivated (at least in part) by the alleged victim being a member of any of the following classes: Age (40 and over); Ancestry; Color; Religious Creed; Denial of Family and Medical Care Leave;… Continue Reading

Goals of Conducting Internal Investigations in the Workplace

Posted in Investigation Goals
Many reasons exist to conduct an internal investigation of an employee complaint of unlawful conduct (or violation of employer’s policy). To name a few: Employers may need to comply with a particular law compelling an investigation. Employer may need to comply with its own policies stating that an investigation will be conducted under the circumstances… Continue Reading

WHEN SHOULD AN EMPLOYER INVESTIGATE? (PART 3)

Posted in Investigation Tips
investigations should be conducted in cases where no one formally complains yet the employer has learned of a claim of wrongdoing via an anonymous tip, citizen complaint, rumor, hearsay, or third-party employee complaining on behalf of the victim. An employer can be charged with constructive notice of the alleged wrongdoing, even if no one complains… Continue Reading

WHEN SHOULD AN EMPLOYER INVESTIGATE? (PART 2)

Posted in Investigation Tips
In deciding whether an employee complaint rises to the level of alleged illegal activity or company policy violations, employers should interpret the incoming complaint very broadly and err on the conservative side by investigating anything that comes remotely close to illegal activity or company policy violations—especially if the allegations are against a supervisor (due to… Continue Reading

WHEN SHOULD AN EMPLOYER INVESTIGATE? (PART 1)

Posted in Investigation Tips
Some types of employee complaints must be investigated as a matter of law, e.g., sexual harassment complaints.  Although no statutes regulate how investigations must be conducted, the California Fair Employment and Housing Act (FEHA) (Cal. Gov’t Code §§12900–12996) requires an employer to take “immediate and appropriate corrective action” when faced with a covered harassment complaint… Continue Reading

Credibility Determinations: EEOC Guidelines on Harassment Investigations

Posted in Credibility Determinations, Investigation Tips
In sexual harassment investigations, it is often the case that harassment occurs behind closed doors, with no witnesses, and it becomes a "he said-she said" scenario.  Instead of reaching a finding that the allegations were "sustained", "not sustained", or "unfounded", I have heard of investigators reaching an "inconclusive" conclusion, and in such an instance, the… Continue Reading

Discrimination Investigation: Good Resource Book

Posted in Investigation Tips
I attended a presentation today at the 29th Labor & Employment Law Section Annual Conference where Andrew Friedman of Helmer Friedman in Venice, CA, was one of the speakers.   Mr. Friedman typically represents employees in employment disputes; however, he previously worked for a prestigious employment defense firm, so he has a very grounded ability… Continue Reading

CAOWI Annual Conference November 13-15, 2011

Posted in Articles, Investigation Tips
Readers may already know that I am on the Board of the California Association of Workplace Investigators ("CAOWI").  I wanted to tell you about our Second Annual Conference that is coming up this November 2011, and let you know about an optional pre-conference session.  It’s called "Examining the Investigation: A Demonstration of Trial Testimony of… Continue Reading

Workplace Investigation Training in Los Angeles

Posted in Investigation Tips
I wanted to let my readers know that I will be conducting training on how to conduct defensible (aka "bulletproof") workplace investigations. The California Association of Workplace Investigators and The State Bar of California Labor and Employment Law Section are co-sponsoring this event, and registration is now open. Date:  May 17, 2011, 9 a.m. to… Continue Reading

Internal EEO Workplace Investigation Training in San Diego

Posted in Investigation Tips
The Society for Human Resource Management (SHRM) is holding its annual conference in San Diego this year June 27 – 30, 2010.  I thought I would alert you to two pre-conference workshops concerning conducting internal workplace investigations.  Both workshops are on Saturday, June 26, before the conference begins. The first is titled Minefields for HR Professionals… Continue Reading

How to Conduct a Sexual Harassment Investigation

Posted in Investigation Tips, Sexual Harassment
Dear Readers, I recently wrote an article, along with employment attorney Nancy Bornn, providing practice pointers on conducting internal workplace investigations.  It is published today on the SHRM (Society for Human Resource Management) website. If you are not a member of SHRM, you can also read the article for a limited time on the California… Continue Reading

Personnel Files: Review Before or After Interview, or Not at All?

Posted in Investigation Tips
Should a workplace investigator in a sexual harassment or discrimination investigation view the personnel file of the complainant / alleged victim at all?  If so, at which point in the investigation should it be viewed, and under what circumstances?  These questions are debatable among workplace investigators, but I have my preference, and of course, an… Continue Reading

EEOC Hit For $4.56 Million for Failing to “Properly” Investigate Sexual Harassment Claims

Posted in Investigation Tips, Sexual Harassment
Last week, Chief Judge of the Northern District of Iowa, Linda Reade, issued an order requiring the EEOC to pay to Defendant CRST Van Expedited the sum of $4.56 million in attorney’s fees, expenses, and costs.   Defendant CRST is a trucking company that the EEOC had sued in federal court alleging that a large number… Continue Reading

Should a Workplace Investigator Examine Statistics?

Posted in Investigation Tips
Employment attorney Jonathan Hyman writes an interesting blog post this week concerning statistics:  Why Statistics are So Important in Reduction in Force Cases.   Attorney Hyman states that "the Older Workers Benefit Protection Act requires all releases and waivers of federal age discrimination claims provided as part of a severance program offered to a group of… Continue Reading

Gathering Documents in a Workplace Investigation

Posted in Investigation Tips
An interesting article came out this week on Jobsinformed titled "Seven Steps to Successful Workplace Investigations" by employment attorney Patricia C. Perez, SPHR, founder of Puente Consulting.   In her Step 3, "Gathering Documentation", Ms. Perez summarizes the relevance of the investigator viewing the personnel files of the complainant and the accused.  She writes: You should automatically pull personnel… Continue Reading

Pitfalls to Avoid in Workplace Investigations

Posted in Investigation Tips
An article posted in the National Law Review on January 31, 2010, titled "Top 5 Pitfalls to Avoid When Conducting Workplace Investigations" by employment attorney Julie Vogelzang is worth the read.  She lists and discusses the following pitfalls: PITFALL NO. 1:  Failing to Promptly Begin the Investigation She notes that "one of the worst things… Continue Reading

Judging Credibility of Witnesses in Harassment Investigation

Posted in Credibility Determinations, Investigation Tips
I came across an interesting article by a federal district judge (Honorable John L. Kane in Denver) about "Judging Credibility" of witnesses.  Since judging credibility of the complainant, the accused, and the witnesses is something workplace harassment investigators need to do, I thought I’d share a couple thoughts from his article. Judge Kane talks about… Continue Reading

Part 4: Resolving Bitterness and Wounded Feelings After a Workplace Investigation

Posted in Investigation Tips, Retaliation
This is Part 4 of a 4-part posting on recommendations to consider before, during, and after a workplace investigation. Most of the suggestions in this 4-part posting go beyond the bounds of what a workplace investigator is retained to do.  Sometimes the employer does not want written recommendations; however, the workplace investigator can offer many… Continue Reading

Part 3: Resolving Bitterness and Wounded Feelings After a Workplace Investigation

Posted in Investigation Tips, Retaliation
Train Supervisors on What Constitutes Retaliation:  The U.S. Equal Employment Opportunity Commission (EEOC) has reported that claims including a retaliation charge rose by 23% in fiscal year 2008.   Vincent Cino, national director of litigation for Jackson Lewis LLP, says roughly 70% of discrimination suits handled by his firm include a retaliation claim.  These statistics are not… Continue Reading

Part 2: Resolving Bitterness and Wounded Feelings After a Workplace Investigation

Posted in Investigation Tips, Retaliation
This is the second of a 4-part posting concerning recommendations an employer should consider before, during, and after an employment investigation to resolve any lingering bitterness by employees. Teachable Moment Suppose an employee complains that her supervisor has exposed her to racial harassment. The investigation determines that while inappropriate remarks were likely made, the remarks… Continue Reading

Resolving Bitterness and Wounded Feelings in the Office After a Workplace Investigation

Posted in Investigation Tips, Retaliation
This is the first of a 4-part post concerning what steps an employer and/or investigator can take to heal the bitterness in a workplace before, during, and after an employment investigation.    Employers often think that the most important part of a workplace investigation is deciding whether a complaint of harassment or discrimination is valid… Continue Reading

No Right to Representation for Accused Nonunion Employees in Workplace Investigations-But for How Long?

Posted in Investigation Tips
Over the years, the National Labor Relations Board ("NLRB") has vacillated on the issue of whether "Weingarten rights" apply to nonunion employees.  Weingarten rights derive from the 1975 US Supreme Court case NLRB v. Weingarten, where the Court announced that unionized employees have the "right" to have a union representative present during certain investigatory interviews,… Continue Reading

Choose Wisely When Using an Employee to Conduct Your Workplace Investigation.

Posted in Investigation Tips, Sexual Harassment
"Neutrality" is the name of the game.  In the recent California case of Nazir v. United Airlines, Inc., the court gave strong cautionary advice about choosing the right workplace investigator.   The Nazir court raised the point that this particular employer (United Airlines) had extensive rules and policies about the investigation of employee complaints.  One… Continue Reading