I will be speaking on "Public Sector Investigations" on June 4, 2013 (9:30 a.m. to 1:00 p.m.)

Location:  Weintraub Tobin ♦ 400 Capitol Mall 11th Floor ♦ Sacramento CA
Co-Presenters:  Kelli Kennaday and Donna Peter
3 hours HRCI & California MCLE Credit Pending

Investigating allegations of misconduct by public sector employees involves both procedural and substantive issues not present in other types of investigations. In this half-day seminar, two experienced public sector investigators and an experienced public sector Director of Human Resources discuss the issues unique to public sector investigations, along with general investigative planning, interviewing and reporting techniques. Among other things, you will learn how to identify public sector issues, give the proper notifications and admonishments, conduct a defensible interview, follow-up without violating state or federal laws, and issue a report that will meet the client’s needs while maintaining any applicable privileges. Attendees will receive program materials containing tips, forms and templates that will assist them in their investigations. Space is limited so register early below to secure your attendance. 

I am once again offering training to human resources professionals, attorneys, and private investigators on how to conduct legally defensible harassment, discrimination, and retaliation investigations in the workplace.  Although the training will be geared towards these professions, attendees of any background are welcome to attend.  Basic knowledge of sexual harassment and discrimination law is helpful, but not required. Questions and problematic scenarios are welcomed!

Date: Thursday, November 15, 2012

Time:  11:45 a.m. to 2:15 p.m.

Location:  Bentley’s Steak & Chop House, 162 South Rancho Santa Fe Road, Encinitas, CA 92024

Cost: $295.00

No Walk-ins. Please make arrangements to prepay by November 8, 2012, by contacting Debra Reilly at debra@wpinvestigations.com.

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);



Religious Creed;

Denial of Family and Medical Care Leave;

Disability (mental and physical) including HIV-positive and AIDS;

Marital Status;

Medical Condition (cancer and genetic characteristics);

Genetic information;

National Origin;



Sex (including pregnancy, childbirth and medical conditions related to pregnancy or childbirth, and breastfeeding);

Gender, Gender Identity, Gender Expression;

Sexual Orientation.

Under Federal law, Title VII (Civil Rights Act of 1964, 29 CFR Section 1604.11(f)) requires the employer to "take all steps necessary to prevent harassment from occurring."  According to the EEOC’s Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 1999), "when an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation."   Further, at least one federal appellate court has said that the "Employer’s investigation of a sexual harassment complaint is not a gratuitous or optional undertaking but required by law."  Malik v. Carrier Corp, 202 F.3d 97 (2nd Cir. 2000).

Under California law, the 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."  "Under FEHA, an employer … has an obligation to ‘take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace.’…  The affirmative and mandatory duty … requires the employer to conduct a prompt investigation of a discrimination claim."  American Airlines v. Superior Court (Di Marco), 114 Cal.App.4th 881 (2003).

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 identified in the complaint.
  • Employer wants to improve the morale of its employees by showing that complaints are taken seriously and are investigated fairly.
  • Employer needs to conduct investigations to learn sufficient information to correct a potential problem.
  • Employer needs to investigate because action may need to be taken to prevent future occurrences by the alleged wrongdoer and possibly others.
  • Employer needs to investigate because the investigation may reveal a problem with training and a need to develop training on the problematic area to prevent future occurrences by employees.
  • Employer needs to send a message to all employees that policies and laws will be enforced.
  • Conducting investigations will encourage other employees to report wrongdoing and takes away a common claim that the subject sexual harassment was not reported by the victim because the employer has not acted on prior claims by other alleged victims.

The federal Sarbanes-Oxley Act of 2002 (“SOX”) was enacted in response to a number of major corporate and accounting scandals including those affecting Enron, Tyco International, Adelphia, Peregrine Systems, and WorldCom.  The Act’s “Whistleblower Protection for Employees of Publicly Traded Companies” provision protects whistleblower employees of publicly traded companies.  It provides that no publicly traded company, including officers, employees, contractors, subcontractors, or agents of the company, may “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment” because of any “lawful act” done by the employee to:

  • Disclose or assist in an investigation regarding conduct that the employee “reasonably believes” is a violation of federal mail fraud, wire fraud, bank fraud, securities fraud laws, any SEC rule or regulation, or any provision of federal law that relates to fraud against shareholders;
  • File, participate in, or assist with a proceeding relating to an alleged violation of federal mail fraud, wire fraud, bank fraud, or securities fraud laws; any SEC rule; or any provision of federal law that relates to fraud against shareholders. 18 U.S.C. § 1514A(a).

The Act does not require the employee to correctly identify fraud to receive its protections.   The employee need only have a reasonable belief that the conduct reported constitutes a violation of federal securities laws.   Further, private companies that plan to go public must also comply with 
SOX regulations.

I have conducted many whistle-blower investigations involving different state and federal statutes, but on SOX investigations, it may sometimes be necessary to bring in an experienced forensic accountant/CPA to work with you.  In such cases, I team up with a very experienced forensic accountant (CPA) in the San Diego area who has developed a highly efficient SOX compliance methodology, understands the complex issues involving Section 404 compliance, state of the art data mining and analysis tools, environment and process activity documentation, risk identification, control identification and deficiency detection, baseline testing, remediation, and many other related accounting issues.  

An employer facing a Sarbanes-Oxley whistle-blower claim will want to make sure to retain an investigative team possessing the right tools (employment law experience + forensic accounting experience) to conduct an accurate and thorough investigation of the allegations.

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 of the conduct, when the conduct is so pervasive that the employer should have known of it.

An employer should also investigate if a complaint comes in through the California Department of Fair Employment and Housing or the EEOC. The investigative report will be included in the employer’s response to the administrative complaint.

An internal human resources employee (or another trained employee) can investigate internally the large majority of complaints that an employer receives, and can usually do so within an hour or two by interviewing two or three eyewitnesses. More complex complaints involving multiple theories of liability, whistleblower statutes, and multiple parties will take longer, and may require hiring a qualified outside investigator.

Time and cost should not be offered as reasons for a failure to investigate.  Failing to investigate for either of those reasons would be penny-wise and pound-foolish.  When the management employee who decided not to launch an investigation is asked pointedly by the plaintiff’s attorney why he or she did not conduct an investigation and offers expense or lack of time as excuses, the judge or jury may not be sympathetic.

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 the employer’s risk of strict liability).

What may seem initially to be an innocuous or petty complaint—which perhaps does not use the magical words “harassment,” “discrimination,” or “accommodation”—could actually be a hidden landmine that would have been discovered earlier if the company had conducted at least a preliminary investigation.

If an employer does not investigate and rule out, based on the facts, potentially illegal conduct early on, e.g., by documenting admissions or denials from the claimant in an investigative interview, a plaintiff’s attorney who surfaces later could create the illusion of some form of illegality retroactively, when a lawsuit is filed.  Prudent employers nail down all of the facts in writing at the outset, or otherwise face a changing story.


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 (see Cal. Gov’t Code §12940), and the U.S. Equal Employment Opportunity Commission (EEOC) states:

When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly.

See EEOC’s Policy Guidance on Current Issues of Sexual Harassment dated March 19, 1990, available at www.eeoc.gov/policy/docs/currentissues.html.

For myriad business reasons, however, wise employers will investigate all complaints alleging any form of illegal activity or company policy violations. A prompt, thorough, and fair investigation conducted in good faith can insulate an employer from liability for wrongful termination (see Cotran v Rollins Hudig Hall Int’l, Inc. (1998) 17 Cal.4th 93; Silva v Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, improve employee morale, and prevent further harassment or discrimination from occurring.


Because I have received many requests to provide internal training to employees on how to conduct sexual harassment investigations, I will be offering open training on the subject to anyone interested, but the training will be geared towards Human Resources Professionals, Private Investigators, and Attorneys.  Attendees of any background are welcome to attend, but some basic knowledge of sexual harassment law is helpful.  If time is allowed, other types of investigative training will be covered.  Questions and problematic scenarios are welcomed! 

Date:  March 30, 2012

Time:  9:30 a.m. – 12:00 p.m.

Location:  2240 Encinitas Blvd., Suite D-104, Encinitas, CA 92024

Cost:  $105.00

No Walk-ins.  Please make arrangements to prepay by March 28, 2012, by contacting Debra Reilly at debra@wpinvestigations.com

California Association of Workplace Investigators (CAOWI) members have just voted to change CAOWI’s name to the Association of Workplace Investigators (AWI).  

AWI will now begin working to expand its membership to workplace investigators in any geographic location in the country–or world, for that matter.  We greatly look forward to new associations with out-of-state investigators.