The California Supreme Court in Cotran v. Rollins Hudig Hall International, Inc. established what constitutes "good cause" to terminate an employee under an implied contract that requires "good cause" to terminate. The Court held that in such cases an employer does not have to prove that allegations of misconduct are true, just that the employer fairly formed a reasonable belief that they were true. Thus, the employer must show not just that it honestly believed the charges, but also that it was reasonable to believe them.
An element of such reasonableness is "an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond." Although the Cotran Court did not expressly describe the essentials of an adequate investigation, the Court set some broad parameters — the procedure may be less formal than a civil trial, but the fact finder should not jump to a conclusion before the end of the process. That begs the question– When have you reached the end of the process? An investigation must be "thorough" to reach the end of the process.
What makes an investigation "thorough"?
Here are a few starters:
- Get all relevant documentation from ALL sides. This includes documentation related to the comparator employees, if you are investigating a disparate treatment claim. (Note: Due to privacy rights, do not seek medical/diagnosis information of comparators in disability disparate treatment cases. In that case, try to obtain documentation of the work-related physical limitations of the comparators. That is probably as close as you can get.)
- Get the complete story from the Complainant before you interview anyone else, assuming you are able to interview the Complainant. If the Complainant is already represented by an attorney, you will need to make a request for an interview with the attorney. Rarely is this request denied, but it can happen. In that case, you have to go on any written or verbal complaints or statements the Complainant has made to co-workers, supervisors, Human Resources, or others. You want to have the full story from the Complainant before you interview the accused employee(s).
- Interview all witnesses identified by the Complainant–unless a witness is clearly irrelevant and then document with an investigator’s note the reason you did not interview that witness. For example, when I ask the Complainant to identify all the witnesses that the Complainant would like to be included in the investigation, I also ask the Complainant to state what he/she expects to be the factual information gleaned from each named witness. If the "performance" of the Complainant is not an issue in your investigation, then you do not need to interview a named witness whose only knowledge is how great the Complainant was at his/her job.
- Document the amount of time you spend interviewing each witness. Someone recently complained to me that he was working on a case and his investigator had only spent 10-15 minutes with one of the major players. He was worried how he was going to handle the defense of this case when the investigator had spent so little time with this particular witness. So, if you are taking time and getting the whole story from your witnesses, you want to have documentation of your time.
- Interview witnesses to whom the Complainant may have made contemporaneous statements. Since this is a possible exception to the hearsay rule, and since you may determine this information to be trustworthy, for whatever reason, this type of information should be obtained and documented in the investigation. You can balance it with your other evidence and decide how much weight to give it later. So, when interviewing your Complainant, be sure to ask if he/she contemporaneously reported the incident to any peers or third parties, as this may be evidence that the harassment or alleged incident occurred.
- Sometimes the witnesses may even be former employees, customers, students, clients. Understandably, the employer may sometimes be reluctant to get their customers involved in an internal employee issue, so in that case, you have to weigh how important the information is against the employer’s desire to not unnecessarily involve customers in their private personnel matters. Can the information be obtained from another source without involving a customer? Is the information to be sought duplicative of information you already know? If so, you may not need to involve a customer.
- Follow the same note-taking procedure for all of your witnesses, including the Complainant and the accused employee. I now prefer to tape record my interviews and not take notes, unless I just jot down a few key points to remind me to get a document or to interview someone I had not known of. There are pros and cons on tape recording interviews, and that will be the subject of a separate blog someday soon.
- You may need to circle back and re-interview witnesses to clear up new issues that have come up with other witnesses. I sometimes tell witnesses right at the end of the interviews that I made need to call them back later for follow-up questions if something new occurs to me. Sometimes you may need to only ask one follow-up question, which might be handled quickly in a telephone call. However, if you have a large amount of follow-up questions on significant issues, a follow-up interview in person is advised.
- Since I prefer to tape record interviews, I have the complete statements of the witnesses preserved. I try to avoid too much paraphrasing in my reports because that can be the subject of attack if you get it wrong.
- The EEOC has issued guidance on the minimum questions that should be asked of the Complainant, alleged harassers, and third party witnesses. These questions should be asked, if relevant to the facts of your particular type of investigation, to help insure thoroughness.