California employers of all sizes may eventually face the difficult duty of handling an employee complaint. Complaints of workplace hazards, discrimination, harassment and other issues warrant a careful response.
Ideally, the employer promptly, thoroughly, and fairly investigates and resolves the employee's complaint, leading to a fair resolution and a content employee. Failure to follow the law and best practices, however, could leave employers at risk for a retaliation lawsuit or further unlawful behavior by its employees.
Collecting the facts
To clarify the conflict, employers may need to:
- Review company email or chat records
- Examine financial statements
- Conduct safety assessments
- Interview the complaining employee, the accused, and other employees or managers without asking leading or accusatory questions
Employers have an obligation to keep conversations and details regarding an investigation private, but only to the extent that they can do so and still conduct an effective investigation. In any event, they should avoid discussing the matter on social media and in any other situation that is not directly related to the assessment process.
Because an employer has likely developed their own perspective of both the situation and the parties involved, they may not be able to complete an impartial assessment. Alternatively, they may not have the proper training and experience to conduct an effective investigation. Due to the gravity of employee complaints, many employers opt to hire an independent investigator to gather evidence and make factual findings, so that the employer may decide what appropriate actions to take. Duggan Law Corporation regularly counsels employers regarding the handling employee complaints, retention of outside investigators, and next steps to take based on an investigator's findings. In addition, its attorneys can serve in the independent investigator role to ensure an effective investigation is completed.
Taking remedial action
Once the investigation is completed, the employer must assess the factual findings and make a decision regarding whether the found conduct was in violation of their policies or the law. If an employer answers this question in the affirmative, remedial action is appropriate, which can be as mild as a verbal warning or as severe as termination.
Investigations that are done properly can be a defense in litigation and should be handled with care. This article has only scratched the surface of what makes for a proper investigation, and it may be advisable for an employer lacking their own skill and training in investigations to seek legal counsel for assistance. Similarly, the level of appropriate remedial action is an important decision to be made, and one that the employer can make with confidence with the assistance of legal counsel.