August 26, 2009


Workplace Investigations

Diana Roupoli

Lawsuits regarding claims of sexual harassment in the workplace are being filed in ever increasing numbers. More importantly, courts have made it clear that employers are legally required to take steps to protect their employees from this kind of treatment or face possible financial liability following a lawsuit. So, what can employers do to prevent or minimize the risk of such liability?

- Establish a strong written policy prohibiting unlawful conduct in the workplace
- Communicate this policy and provide training to staff and management
- Document the distribution of the policy by having each staff member sign and acknowledgment that they have read and understand the policy
- Document attendance at all training sessions
- When a complaint is received, follow your policy and apply it consistently to each staff member
- If the complaint warrants an investigation, take swift action and follow through with any disciplinary action (if you're unsure if the situation warrants an investigation, consult a professional such as an employment law attorney)
- Document all action taken

How an employer responds to complaints of sexual harassment may lead to a prompt resolution or in the alternative, to a financially devastating lawsuit. California law actually requires that employers conduct reasonable investigations regarding complaints of sexual harassment. Once you've made the determination to conduct an investigation, it is imperative to select the right person. An employer has the following options in conducting a workplace investigation:

- Internal Investigation: An employer can identify a person or persons within their own organization who have been trained in conducting workplace investigations. Oftentimes this will be HR professionals. However, in many circumstances, the HR employee has already been involved in the complaint process or they may be familiar with those involved. This can lead to allegations of bias and may jeopardize the entire investigation. Additionally, the complexity of some investigations may be beyond the training and legal expertise of HR staff.

- Outside Consultants: The California Department of Consumer Affairs requires that anyone who performs an employment investigation regarding workplace misconduct, must possess a private investigator's license. The exceptions to this requirement are of course company employees, discussed above, and attorneys. Attorneys will have a good understanding of the legal requirements involved, but can be very expensive. Keep in mind that outside HR consultants are not legally allowed to conduct workplace investigations unless they are licensed as private investigators.

An excellent source for conducting workplace investigations is a private investigation firm who specializes in this area. Workplace investigations are complex and require a lot of training over and above merely obtaining a private investigator's license.

Gailey Associates, Inc., a private investigation consulting firm, with offices in Los Angeles and Orange Counties, have dedicated workplace investigators with many years of training and experience. Three of their employment investigators are also licensed as attorneys, two in the state of California and one in the state of Minnesota. Gailey Associates' clients receive the benefit of investigators who have legal training and expertise, without the very expensive rates that law firms may charge. For more information regarding Gailey Associates, Inc. and their services, go to Gailey Associates, Inc. or call 714) 622-1900.