Avoiding Investigation Pitfalls, Part 1: Gearing Up
In an increasing trend, parties to employment lawsuits find themselves litigating not only the plaintiff’s underlying employment claims but also the company’s investigation – or lack thereof – into the plaintiff’s complaints.
A variety of potential pitfalls can compromise the actual and perceived quality of an investigation. That, in turn, can cast a shadow on the company and its motives, either to the jury in a future lawsuit or in general to other employees. This first installment of the three-part series will identify common investigation mistakes and how to avoid them.
PITFALL #1: Failing to Investigate (“Do we really need to do an investigation on this?”)
All of these are bad reasons not to conduct an investigation:
- The complaint did not contain any legal buzzwords
- The complaint did not come through “formal” channels (e.g., through HR or an established complaint process)
- The complaint was not in writing
- The complaint was made anonymously
- The complaint was an offhand comment or made outside work
- The employee did not request an investigation, or affirmatively asked for the complaint to be kept “confidential”
Failure to investigate may also subject the employer to the additional claim of failure to prevent discrimination/harassment, and it may create an inference of malice that can support an award of punitive damages. It also creates room for a “Plaintiff complained but the company did nothing” argument in litigation, which can overshadow the merits of the underlying claims.
Even if no lawsuit ensues, other employees might lose trust in the complaint process and not bother reporting other issues, which could lead to future liability.
PITFALL #2: Moving Too Slowly (“I meant to get to it, but we had a lot going on.”)
A company’s busy internal investigators may be tempted to shift an investigation to the back burner so they can meet the demands of their day-to-day obligations. But initiating or conducting an investigation too slowly can give the impression that:
- The company was not committed to a fair investigation
- The investigator was biased
- The company allowed the alleged bad behavior to continue for several weeks/months, resulting in increased harm/emotional distress
Choosing an investigator who has the time and ability to conduct the investigation quickly and efficiently is crucial – and if the usual HR investigators are swamped, it might be time to look to an outside investigator. Which leads us to…
PITFALL #3: Choosing the Wrong Investigator (“I’ve never done an investigation before, but how hard can it be?”)
The right investigator should have:
- Bandwidth to do the investigation – see Pitfall #2
- Training/experience conducting investigations – to ask the right questions of the right people in the right way
- Subject matter expertise – the company will rely on the investigator to spot the issues, report all the facts needed to analyze the legal claims, and identify other potential employment law issues that may arise along the way
- Impartiality – someone with a relationship to the complainant or subjects may appear biased
- The authority to act as investigator under B&P Code §§ 7520 et. seq. – meaning the company’s outside HR consultant may not qualify
A qualified outside investigator may be the best choice where:
- There is a higher risk of a lawsuit or agency charge
- The accused wrongdoers are HR, in-house attorneys, executives, or officers
- There are allegations of widespread wrongdoing (e.g., company-wide discrimination)
- There is potential for bad publicity
- The internal investigator’s experience or impartiality can be challenged
Part 1 in a nutshell: take action, act quickly, and choose wisely.
Next time in Part 2: Doing It Right, we’ll provide tips on identifying and avoiding potential pitfalls while conducting the investigation.