Employers often walk a fine line when conducting workplace investigations—especially when those investigations are directed by an attorney. On the one hand, involving attorneys can strengthen the integrity of the process, especially if an outside counsel is hired by the company to conduct that investigation. On the other, it creates a latent risk: waiver of attorney-client privilege and work product protection if the employer later relies on the investigation as part of its defense to either justify the termination or demonstrate that they met their obligation of investigation the allegations made. 
That risk becomes very real in litigation involving claims of discrimination, retaliation, failure to investigate, or wrongful termination.
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The governing principle is this: an employer can't refer to the investigation as a defense in litigation and at the same time refuse to disclose the written materials relevant to that investigation.  The leading case on this issue is is Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128. There, the court held that when an employer affirmatively relies on an attorney-conducted investigation to defend its actions, it places the contents of that investigation “at issue,” thereby waiving privilege.
In practical terms, once an employer argues:

• “We conducted a thorough investigation,”
• “We relied on counsel’s findings,” or
• “We acted in good faith based on the investigation,”

…this opens the door to discovery of what would otherwise be a protected material not available to the plaintiff.  
As a result, the plaintiff may gain access to wintess statements, interview notes, draft reports, attorney impressions, and final investigation reports. This can fundamentally shift the leverage in a case, especially if any of these documents contain any "juicy" evidence showing that the employer had unlawful reasons for terminating you.  This damning evidence can include the following: flaws in the investigation, biased questioning, failure to interview key witnesses, pre-determined conclusions, and inconsistent documentation.

These types of issues with the investigation process can, along with other evidence, support or strengthen a potenital or existing case against that employer. Employer should keep this in mind when deciding to conduct an investigation and at a minimum ask themselves: what will be the exact purpose of this investigation? How likely is the company to use this investigation and its conclusion to defend any potential legal action by an employee? And, does the company feel comfortable disclosing all of these investiation materials if need be under the circumstances? 

Under Title VII, a union may be liable in several ways for workplace discrimination and harassment. First, a union may be liable for intentionanlly failing to file grievances concerinng a racially hostile working environment of any of its members. Goodman  v Lukens Steeol Co., 482 US 656, 667 (1987). This inquiry does not require proving that the workplace was hostile. In Goodman, the union had for several years been a party to a union contract with a provision expressly prohibiting discrimination. The union was aware of, but nevertheless ignored grievances based on racial harassment and other forms of discrimination. The Supreme Court held that a union's deliberate failure to bring race-based claims, by itself constituted discrimination, violating the plain terms of Title VII.   

A union may also be liable under Title VII for acquiescing in a racially discriminatory work environment, i.e. being aware of discriminatory or harassing conduct taking place and doing little to nothing to remedy or prevent it. The union has an affirmative obligation to oppose employment discrimination against its members. Bonilla v Oakland Scavenger Co. 697 F.2d 1297, 1304 (9th Cir. 1982). The same reasons which prohibit an employer from discriminating on the basis of race... apply equally to the union. McDonald v Santa Fe Transp. Co., 427 U.S. 273, 285 (1976).    

In light of the above, it's well worth exploring, when filing a lawsuit against an employer for discrimination and wrongful termination whether there is sufficient evidence to include the claimant's union in the complaint as a defendant. Woods v Graphic Communications 925 F.2d 1195 (9th Cir. 1991) is another important case whic includes relevant discussion and analysis for union liabiltiy for discrimination in various circuits. 

There is one specific thing you can do to help your attorney get the best results in your discrimination, harassment or wrongful termination case:   

 - pretend to be your employer's attorney for a moment and ask yourself how you would defend the case against you - 

This means that you should first share with your attorney not only the facts that support your case but also circumstances that might make it more challenging as early as your initial consult to evaluate your case.  This will help your attorney  determine whether your case is worth pursuing, and if so - prepare to defend your case against any arguments made by the employer's attorneys using those negative facts.

Think of any skeleton in your closet your employer knows about or can discover to use against you during your testiomny. This can include your previous arrest history with or without conviction, drug use, problems  with or claims against your previous employers, rude or inappropriate emails or text messages you may have sent in the past to your co-workers or management, less than flattering social media activity, and any other information that would put you in less than positive light. Prepare to deal with these facts, if the employer's attorneys try to use them against you

When you prepare for your deposition, make a list of questions that you believe you would be most uncomfortable answering, and discuss with your lawer how you should best answer those questions. If you are ready for the most difficult questions during your deposition testimony, the rest should be much easier. 

Below are three simple but practical tips on how to make the process of initiating a wrongful termination case less stressful, after you have been fired: 

1. Put Your Situation In Perspective. Realize that the worst thing in this process has already happened to you - you have been terminated. The employer can't really take away anything more from you than they already have - your job and your income. 
2. Keep in mind that your case is a civil case (as opposed to criminal). No matter what happen in your case - neither you nor your former managers will go to jail, and your case will generally revolve around whether or not it can be settled or whether it will go to trial or arbitration.  Some cases are dismissed by court due to lack of evidence, and that's an inherent risk of employment litigation. Your attorney should evaluate your case in great detail before deciding to pursue it in order to minimize the risk of your case being dismissed.

3. Work with the right lawyer.  Work with a lawyer who you are comfortable with, i.e. somehow who strikes you as knowledgeable, personable, responsive, and who you can ask to explain not only what your course of action in your case will be but also why. Often that will not be the same lawyer who has the sharpest website or the largest billboard on a highway, or someone who is too sure of himself. Be sure to share with your lawyer your biggest concerns about your potential case, so that he can address them and help you make the right decision and what your next steps should be. 

Under California law, an employer has an obligation to conduct a prompt, thorough and fair investigation of any complaint of unlawful harassment or discrimination at workplace, and take proper remedial action to stop harassment and/or prevent it from occurring in the future. This doesn’t mean that the employer automatically has to fire the accused, but if violation is found, they have to take some disciplinary action that they reasonably believe would be effective to discourage or prevent such future violations.   

Conducting proper investigation is important not only to the parties involved in that conflict so that their issue is resolved, but also to the employer.  This is because if the investigation is not conducted correctly, the alleged victim of harassment can use the substandard quality of the investigation in his claims against the employer, showing that the employer is that bad guy because they didn't care to do the investigation correctly, when they could and should have.  

Here are two board and critically important principals of every proper workplace investigation:

1. The investigation has to be impartial or as impartial as possible. This means that ideally, the investigator must not be an internal employee, but someone who is hired from the outside. There are plenty of companies out there who offer quality workplace investigators, who can come in and do a good job interviewing all the parties involved and witnesses, and issuing reasonable findings for you, the employer, to work with.  Ideally, an employer should be hinting to the investigator at the findings they would like to see and let the investigator do their job completely independently. 

2. All relevant witnesses should be interviewed.  There are almost always two sides to every story. To get the most complete picture of the situation and the most reliable findings, the investigator should talk to every witness of the relevant events on both sides - the alleged victim and the accused. An employer should not be preventing the investigator from doing as good and as complete of a job as they would like to, if they want to get to the bottom of what happened in any given dispute.     

Sticking to the above basic principles alone should help any employer make sure that their investigation is conducted correctly, and it will not backfire or any of the parties involved initiates litigation. 

One of the actions that employers sometimes take, that potentially can be a serious violation of California and Federal disabilities laws, is cancelling a disabled worker's existing accommodation that has been in place for some time and allowed that employee to perform his job well. This tends to happen more often when a new manager comes on board, who is eager to make significant changes in the office, some of which could be good while others - not so good.  

Whether an employer's revokation of an existing accommodation is lawful depends on a number of factors, including the specific reasons behind that action, whether alternative, effective accommodations are available and are actually offered to the employee in question and whether there is some change in the employer's operation or the employee's medical status that would justify this change. Each situation must be evaluated individually in light of its unique circumstances to determine whether (a) a compromise between the employer's new goals and the employee's needs can be reach, and if not (b) whether there is sufficient evidence to puruse a disability discrimination case against that employer. 

In these types of situations both sides should consider avoiding impulsive decisions as such termination of that employee or quitting the job by that employee. Instead, the parties should first explore the issue and see if they can reach some kind of compromise that works for both the employee who needs and accommodating and that employer. 

Despite the fact that there has been no legal requirement for any employers in California to impose Covid-19 vaccine mandates on their workers, many employers choose to continue demanding that their employees are fully vaccinated.  It is most surprising that even fully remote employees are expected to be vaccinated by many private and public employers, and these same workers are routinely denied requests for a religious exemption from this requirement. It is hard to imagine how an employer could justify insisting on compliance with their vaccination rules with respect to those workers, who never come in contact with their co-workers or company clients / customers.   

We have already filed several lawsuits to challenge this highly unethical practice that leads to good workers losing their jobs and having their careers and livelihood derailed for no good reason , and this lawsuit against the City and County of San Francisco being one of the more recent ones.  We look forward to seeing how these cases turn out in court. 

Both employees and employers should know that often a QME report of an injured worker who has been out on a workers comp medical leave, doesn't tell the whole story about that employee's ability to return to work. Therefore, other sources of information about the employee's medical condition and ability to work must be taken into account. 

For instance, if a QME report is not clear about an employee's ability to perform his job duties, seek clarification from the QME doctor or from another doctor, such as that employee's primary care physician. A typical misunderstanding arises when an employer, who receives a QME report that states that the employee cannot bend and kneel, assumes that the same employee is in such a bad shape that he is completely unable to work, and therefore can be terminated. This is obviously not true if the employee's job duties do not require much or any kneeling or bending. This type of unfrounded assumption based on an incorrect reading of QME can be the cause of wrongful terminating a worker and violating his disability rights.

As Eastern District Court of California recently observed in one of their court rulings "an employer's blind adherence to the QME report ignores substantial evidence to the contrary".  The court held that evidence of an employee's ability to continue performing his job duties despite his ambiguous QME, his other doctors opinions about his ability to perform his typical job duties, and the employee's own testimony about the fact that he can handle his work just fine must be taken into account when making a determination regarding that worker's return to work.  The court asked a number of questions in its opinion which reflect on the mistakes made by the employer in that case: "The obvious question becomes why Defendant rushed to judgment on the basis
of an equivocal statement by a workers’ compensation evaluator10 that was contradicted not only by Plaintiff’s own treating providers but by Plaintiff’s own demonstrated ability to do the job. Why did Defendant terminate Plaintiff without any further inquiry, without talking to Plaintiff himself about whether he could do the job, and after only a small number of relatively short phone calls?" - These types of questions should serve as an important reminder to employers about how to correctly assess an injured worker's ability to return work, but looking at the whole picture, rather than only some evidence of an employee's medical condition. 

California employers that have a policy of requiring their employees to wear a mask at workplace due to Covid-19 should be aware that some of their employee may be entitled to a reasonable accommodation with respect to that policy under ADA and California FEHA (Fair Employment and Housing Act). These accommodations may typically include: (1) wearing a special mask to address any breathing or allergy issues associated with wearing a typical masks; or (2) allowing an employee to work remotely instead of working masked in the office.

As an employee who has a difficulty wearing a mask at workplace, especially if you are required to do so all day, you may be entitled to a reasonable accommodation under ADA or California FEHA. This is especially true if you suffer from acute asthma and associated difficulty breathing.  The first step in this accommodation process should usually be approaching the employer and candidly discussing your difficulty working with a mask on and discussing possible solutions that could work for both sides.  Like with other types of medical conditions and accommodations, this dialogue may require individualized assessment of the employer's needs and risks vs your challenges of being able to perform your job duties without having difficult breathing and/or aggravating your pre-existing respiratory illness. 

I suspect that even when Covid-19 will be considered fully behind us, may workplaces will still require their employee to wear masks out of abundance of caution, so this issue is likely to be relevant for many years to come.