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Top Mistakes Employers Make When Conducting Workplace Investigations

1/4/2015

 
workplace harassment investigations
California employers have an obligation to conduct proper workplace investigation of harassment or discrimination allegations by an employee and taking all reasonable steps to remedy and prevent future harassment. As the court recently reiterated in Nazir v United Airlines, a poorly conducted, biased investigation can intself be evidence of discriminatory motive against the alleged victim of discrimination or harassment. While every situation has its own unique aspects that call for an investigation process tailored to that situation, there are three common mistake that employers make when conducting a workplace investigation that may cast doubt not only on how reliable the conclusions are, but also on whether the investigation was conducted in good faith, and whether the employer really intended to get to the bottom of the incident/s in question.  

1. Failing to interview both the accused and his witnesses as well the accuser and his witness.
Interviewing only one side or neglecting to interview potentially critical witnesses for one of the sides will make the investigation look particularly unfair and biased. It is the employer's duty to interview and gather information from all the available sources on both sides, before making any conclusion or taking action against an employee.    

2. Delaying the investigation
While there is no bright line rule on how long it should take for the employer to start and complete the investigation, the sooner you start the better. This is especially true in cases where the employer is a large and well-funded company with resources specifically allocated for ensuring workplace safety. Waiting for weeks to initiate investigation may be unacceptable, especially if the alleged conduct is egrigious enough, such as sexual harassment, or violence / threats of violence at workplace. 

3. Having the investigation conducted by a manager who is biased 

To be fair, the investigation has to be conducted in an unbiased manner. If the investigation is run by the manager who dislikes or favors the accused or the victim for personal reasons, that investigation is likely to be skewed and lead to unfair conclusions.  An employer should consider having an investigation conducted by an impartial investigator or an attorney in order to make sure that the results of the investigation are actually useful. 

Employees can use one of the above issues in workplace investigations in proving their discrimination or retaliation. For instance, consider a situation where an employee applies for FMLA or disability leave. Shortly after making that request, a complaint of harassment is submitted against him, and he is terminated without any investigation or after a very shallow and incomplete investigation takes place. The employee can later argue that along with timing of his termination relative to the medical leave request, the fact that the employer didn't bother to verify the accusations before terminating him further evidences that the real reason for termination is medical leave discrimination and not the harassment complaint. 


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We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


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  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case