In many circumstances, employers should consider retaining experienced counsel to conduct internal investigations of employee complaints. This is particularly important when an employer receives an internal complaint pertaining to alleged sexual harassment or other unlawful harassment or discrimination in the workplace. This is likewise the case when an employer receives a complaint filed with the Department of Fair Employment & Housing, Equal Employment Opportunity Commission or the Labor Board by one or more of its current or former employees.
California specifically requires immediate and appropriate corrective and investigative action by employers once the employer receives a complaint of sexual harassment or other unlawful harassment or discrimination, or once the employer has reasonable cause to believe that such conduct may be occurring in the workplace. Not only must employers stop unlawful conduct, but must launch immediate neutral investigations into allegations raised. Employers who fail to do so may expose themselves to significant liability down the road should the affected employee file a lawsuit.
The amount of punitive damages available to the employee in a lawsuit largely depends upon whether the employer had actual or constructive notice of the unlawful conduct, as well as, upon the appropriateness of the employer's actions in preventing and investigating it. As such, employers must make every effort to conduct impartial and neutral investigations into employee allegations, including conducting and documenting proper interviews of the complainant, the accused and all known or possible witnesses.
Quite often, it is difficult for employers to meet these legal requirements in an internal investigation especially when the accused is a high-level managerial employee or when the employer lacks an adequate human resources department with the proper training to conduct a neutral and comprehensive investigation. Because an employer's conduct will be highly scrutinized after a lawsuit has been filed, many employers elect to retain an outside neutral investigator to conduct the requisite investigation. Employers are well-advised to consider this option.
|