Workplace Investigations: Understanding StandardPractice

By Michael A. Robbins and Julie B. Yanow

Dominic v. DeVilbiss Air Power Co .• 493 F.3d 968(8th Cir. 2007) (approving both external and internalinvestigations).

4 See EEOC Guidance, supra note 1; Nazir v. UnitedAirlines, 178 Cal. App. 4th 243 (2009); Bierbower v. FHP,Inc., 70 Cal. App. 4th 1 (1999).

5 Bierbower, 70 Ca. App. 4th at 7. See also Walker v.Thompson, 214 F. 3d 615, 627-28 (5th Cir. 2000) (improperto use an involved manager). overruled on other grounds inDeHart v. Baker Hughes Oilfield Operations, 214 Fed. Appx.437,441.2007 U.S. App. LEXIS 1362 (2007); Silva v. LuckyStores, Inc., 65 Cal. App. 4th 256, 272 (1998) (finding inves­tigation appropriately conducted by an uninvolved humanresources representative).6

investigation is conducted by a company employee­such as a human resources professional-or isconducted by an outside investigator,3 in order to guar­antee the best outcome, the investigator must possesscertain traits, including neutrality and impartiality.4Among other things, this means that the individualchosen to investigate should not be involved in any ofthe incidents that are the subject of investigation.5

Additionally, "[tlhe alleged harasser should not havesupervisory authority over the individual who conductsthe investigation and should not have any direct orindirect control over the investigation.,,6 Nor shouldthe investigator be biased in any other way or haveany conflict of interest.?

As well as being neutral and impartial, the investigatorselected should be experienced. Specifically, he or sheshould be trained and have hands-on practice inconducting workplace investigations.8 While the deter­mination of "trained" and "experienced" is a subjectiveone, the investigator should be a person who has beentrained to conduct investigations, has conducted investi­gations of the kind at issue or, preferably, both.

See EEOC Guidance, supra note t.

7 See Nazir, 178 Cal. App. 4th at 277 (criticizing the inves­tigation because. "inferentialLy," one of the investigators hadan "axe to grind. "). During the investigation, "the investi­gator shouLd refrain from offering his or her opinion." SeeEEOC Guidance, supra note ).

H EEOC Guidance, supra note I; Silva. 65 Cal. App. 4th at272; Dominic, 493 F.3d 968. 974-76.

The Inyestigator

The first step in conducting an investigation is to choosean investigator to look into the allegations. Whether the

In ever-increasing numbers, current and formeremployees are claiming that they have been thevictims of harassment, discrimination and retaliation.When these claims are raised, employers are obligatedto conduct an investigation. J This article will discussthe basic mechanics that comprise the recognized"standard practice" for conducting a workplace inves­tigation of such allegations?

Under Federal La: uaJ Employment pponuo.ilyC mJ11i slOn' ("EEO ") P licy uidance on CurrentIJ ue of exuul Hara smenl, EEO otice No. -915-050Mar. I • 19 9) (hereinafter, 'EEO Guidance"), available

tit hUp:/lwww.ee c.g v/policy/docs/curremi sues.html;at n . B'lue ircle, loc., 324 F.3d 1252 (11th ir.

2(03): Halley v. Hill n Hotels rp.. 30 F.3d 473 5th ir.20(2)' BaL r v. Hawaii, 39 F. d 1021 (9th ir. 1994); teinerv. h wboar Operalin 0 .• 25 F.3d 1459 (9th iT. L994.C rI. dented, 513 .. 1082 (1995. See also Malik v.•arTier orp~ 202 . d 97 (2d ir. 2000 (employer inv ­

tigalion of sexual harasSmCDt complaint is nOI a graluit us roptional lLndertaking, bUI required b law); Sarro v. City fa ramenlO, 711 F. upp. 2d JO 7 (ED. :at. 1999). A cord,

Nichols v. AzLe a Rest, 256 F. d 864 (9lh Cir. 2001); Fullerv. ity r akland, 47 .. d 1522 9th ir. 19 5).

nder Californja Law: Brad I y V. aI. Dep't of Corrections.15 al. App. 4th /612 2008); American irlines, Inc. v.'uperior Our\., I 14 Cal. App. 4th 881 (2003); Alaniz v.Rn n M. Peppercorn. MD, o. 2:05 V-2576, 2007 U..OL l. LE I 26 4 E.O. at May 3,2007). S e also Mathieuv. rrel! orp.• II al. App. 4th 117 , IJ 5 2004applyin' duty 1 inve 'ugat to haras llleDl and retaliation)

iling wc:ns n . P lIer, 271 . d 11 4, 1/9 (9th ir.200 I) (" Til m I .. ignjfi ant immediate mea UTe an empl yeTcan lak.e in re~'POnse to a cxuaJ hara smenl mplaiot' tolaun It a prompt iove tigalion LO detennine whether theomplaint is justified. "); e.llioi V. Harcoun Brace & Co.,

51 . upp. 2d 1028, 10 9 (S.D. Cal. 1999) (Under theFHA. "d lendanLS Illad al Lear legal dUly r inve tigateplaintiff's sexual harassment claim.").

<) Of course, there is no way to comprehensively describe~tandard practices in an article of this size. Instead, this articleencompasses only the "basics."

C \ I "hilI" .\: I 11I1111l\ IIIL"" Hlilkllli I X I ,1L1Il~' 2()!O

The Investigation--Prompt, Thorough, Impartial

Prompt

Once the investigator is chosen, he or she shouldpromptly investigate the allegations,9 which means thatthe investigation should both start and end without unduedelay. As the Seventh Circuit recently stated, "a promptinvestigation is the 'hallmark of a reasonable correctiveaction.' ,,10 There is, of course, no "bright line" as tohow long an investigation should take; each investiga­tion must be viewed individually. Naturally, a complexseries of allegations involving multiple witnesses whoare not located at the same facility will take longer toinvestigate than a simple set of allegations involving ahandful of witnesses, all of whom work at the samelocation. The Equal Employment Opportunity Commis­sion ("EEOC") has recognized that "[t]he amount oftime that it will take to complete the investigation willdepend on the particular circumstances." II Again, what"prompt" means can vary given the particulars of everysituation, but an employer should be able to demonstratethat it took reasonable steps to begin and complete aninvestigation as quickly as practicable after learning of acomplaint. Whether this was sufficiently prompt, ofcourse, will be determined by the trier-of-fact.

Scope

One of the investigator's first steps will be to make surethat he or she understands the scope of the investigation.This can be done in several ways. Generally, a conversa­tion with the person requesting the investigation will givethe investigator an idea of the matters to be included.Additionally, at the outset of the investigation, the inves­tigator should review any relevant threshold documents.Generally, this can include a written complaint, if there isone, relevant company policies and documents frompersonnel files, among other things. 12 While a conversa­tion with the person requesting the investigation andreceipt of the threshold documents may be sufficient to

9 EEOC Guidance, supra note 1; Silva, 65 Cal. App. 4th at272; Casenas v. Fujisawa USA, Inc., 58 Cal. App. 4th 101(1997); Fuller, 47 F.3d at 1528-1529.

10 Porter v, Erie Foods Int'l, Inc., 576 F.3d 629, 636 (7thCir. 2009) (internal citations omitted).

II EEOC Guidance, supra note I.

12 Roby v. CWI, Inc., 579 F.3d 779, 782-83, 786 (7th Cir.2009); Bradley, 158 Cal. App. 4th at 1632. In its Guidance, theEEOC suggests looking for "notes, physical evidence, orother documentation regarding the incident(s)." EEOCGuidance, supra note 1.

establish the scope, it is common for other information to

surface which, arguably, raises additional issues and/ormay be within the scope of the investigation. This canoccur as a result of uncovering additional documents 1.1 orthrough information obtained in witness interviews. If,for example, new allegations come to light that pertain toa new type of misconduct, the prudent investigator shouldneither ignore the information 14 nor automatically sweepthose allegations into the current investigation. Instead,he or she should present the information to the personrequesting the investigation, so that a deterrnjnation maybe made as to whether the new allegations should beinvestigated.

Appropriate Confidentiality

Following a review of any relevant threshold docu·ments, the investigator should be ready to formulatc aplan and to interview witnesses. 15 When the investigatorbegins interviewing those involved in the matter, thequestion of confidentiality often is raised. AppropriateconfidentiaHty is another hallmark of a proper work­place investigation. Specifically, while "[aln employershould make clear to employees that it will protect theconfidentiality of harassment allegations to the extentpossible ... an employer cannot guarantee completeconfidentiality, since it cannot conduct an effectiveinvestigation without revealing certain information tothe alleged harasser and potential witnesses, .. , [llnfor·mation about the allegation of harassment should heshared only with those who need to know ahout it.·' Iii

Order and Types of Witness Interviews

Standard practice is to begin the investigation by talkingto the person (or persons) who brought forward theconcerns that are the suhject of the investigation (i.e.,

13 The EEOC discusses the importance of reviewing"physical evidence (such as written documentation)." EEOCGuidance, supra note 1. Such evidence has become particu­larly important given the proliferation of e-mails, texting, theInternet, and other electronic means of communication.

14 Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6thCir. 2008).

15 At the beginning of the investigation, considerationshould be given to whether interim measures need 10 betaken, such as separating the parties, This will depend uponthe specific allegations raised. EEOC Guidance, supra. nOlc I.If there is no written complaint, the investigator may have 110

choice but to discover the allegations in his or her initiaJ inter­view with the complaining party.

16 EEOC Guidance, supra note 1.

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Dominic, 493 F.3d 968 at 974; Silva, 65 Cal. App. 4th at26

272.

Thoroughness

A proper workplace investigation is a thorough one?SIn order to conduct thorough witness interviews, theinvestigator should ask open-ended, non-leading ques­tions in an attempt to elicit facts, as opposed to opinionsor supposition.26 Importantly, of course, if a witness isalleged to have seen a particular incident, that personshould be asked about the incident. 27 However, theinvestigator should follow up with detailed questionsof all of the parties and witnesses and should not besatisfied with general answers to general questions. 2s

Conducting a thorough investigation includes not onlyinterviewing the complaining party and relevantwitnesses, but also meeting with the person or personsaccused. 29 Consistent with conducting a thoroughworkplace investigation, the investigator should givethe accused party a full opportunity to admit to ordeny the allegations, and to provide any other explana­'tion or evidence he or she wishes. 3o Giving the accusedparty a full opportunity means that the investigator mustagain ask detailed questions and obtain detailedresponses.

Another important aspect of conducting a thoroughinvestigation is that the investigator should take andretain detailed notes of all interviews? 1 Having an accu­rate record of interviews is important. However, thepresence of a tape recorder can create, or be viewed ascreating, an adversarial atmosphere, which is not condu­cive to establishing a productive information-gathering

27 EEOC Guidance, supra note 1.

28 For example. in its Guidance, the EEOC provides exam-pIes of specific questions that should be asked. See id.29

25 EEOC Guidance, supra note 1; Dominic, 493 F.3d 968at 974; Watson, 324 F.3d 1252 at 1260; Casiano v. AT&TCorporation, 213 F.3d 278, 28~287 (5th Cir. 2000) (givingweight to employer's "in-depth" investigation); Reeves, 121Cal. App. 4th at 120-121; Payton v. New Jersey TurnpikeAuthority, 148 N.J. 524 (1997).

/d.; Bradley, 158 Cal. App. 4th at 1632; EEOC v. VideoOnly, No. 06-1362-KI, 2008 U.S. Dist. LEXIS 46094 (D. Or.June 11,2(08).

30 EEOC Guidance, supra note I; Watson, 324 F.3d 1252at 126[; Cotran v. Rollins Hudig HaI[ Infl, Inc., 17 Cal. 4th 93(1998); King v. United Parcel Service, Inc., 152 Cal. App. 4th426 (2007); Silva, 65 Cal. App. 4th at 264, 272; Casenas, 58Cal. App. 4th at 107.3\ .

Nazir, 178 Cal. App. 4th at 280-281; Silva, 65 Cal. App.4th at 272.

EEOC Guidance, supra note 1.~I

17 See. e.g., Cosenos, 58 Cal. App. 4th at 106. There aresome exceptions to this rule, for example, where thecomplaining party refuses to meet with the invesligator or ifdictated by a critical witness's availability.

J~ EEOC Guidance, supra note I.

I'} GOrLynski v. JetB[ue Airways Corp., 596 F.3d 93 (2dCir. 2010); Nazir, 178 Cal. App. 4th at 258; Dominic, 493 F.3d968 at 971.

Finally, there may be individuals "similarly situated"to the complaining party. 23 For example, if thecomplaining party is raising allegations that her super­visor made inappropriate comments to her based on herrace, other employees of the same race (particularlyemployees of the same gender and race), who reportto the same supervisor, should be interviewed to seewhether they have experienced similar conduet.24

p r 011 may be a witnes for one r more reasons. Forexampl • an individual may have reI vant informationb au, sh is alleged to have b erved a pe me inci­dent r in id Il~ .19 or becau be might be in a po in nt provid ulpatory evident .'lO In additi n, tb

mpfainjng patt may have talked to an individual ator about th' time 0 a material vent. That individualcould reasonably be expected to have relevant informa­tion and should be interviewed as wel1.2

' As anotherexample, an individual might reasonably be believed tohave relevant information because he was in a positionto have seen something, even though no one specificallysays that he did.22 Such a witness might have a deskclose to the area in which a particular incident occurredand, although no one knows whether the witness saw orheard anything, he might have been in a position to doso. As part of a "thorough" investigation, such awitness should be interviewed.

the complaining party). J7 This is because the best way toobtain all of the details about the allegations is to hearlhem from th per n ra' iog Lh oncem .1n addition Loth mplainin party, the inv 'ligalar h uld interview

ther witn se' i.. individual "wh c uJd reas nablybe '[ d t have relevant inIormation.'·l~

20 Taybron v. City and County of San Francisco, 341 F.3d 957(9th Cir. 2(03); Fuller, 47 F.3d at [529; Nazir, 178 Cal. App. 4that 280; Reeves v. Safeway Stores, 121 Cal. App. 4th 95 (2004).

}2 Porter, 576 F.3d at 637; [Jominic, 493 F.3d 968 at970-971.1 { EEOC Guidance, supra note I.'2-1

The investigator should also ask the complaining party,the accused party and the witnesses whether there are otherwitnesses that the investigator should interview.

Because determining credibility is so crucial to a properinvestigation, and part of determining credibility isobserving demeanor, the investigator should be in a posi­tion to observe the witnesses' and parties' demeanor.This means that the interviews of any individualswhose credibility is to be determined should, wheneverpossible, be conducted in person.

Making and Communicating a Determination

Once all of the evidence is in, interviews are finalized,and credibility issues are resolved, the investigatorshould make a factual determination as to whatoccurred. Thereafter, depending on the scope of theinvestigation, either the investigator or a managementofficial who receives or reviews the investigator'sreport may determine whether the conduct at issuewas a violation of policy or otherwise inappropriate.1f>The determination made must, of course, be a reason-­able one, based on what the investigation hasrevealed.37 It is also important that the parties areinformed of the determination in a timely manner.3

!l

Taking Appropriate Corrective Action

After having conducted a prompt, thorough and impar­tial investigation, and having reached a reasonableconclusion, the employer will be in a position to takeprompt and appropriate remedial or disciplinaryaction.39 While such action will depend upon theresults of the investigation, disciplinary action couldrange from a warning and training to termination.depending upon the facts determined by the investi­gator. Even if there is a finding that no inappropriateactivity has occurred, the employer still should conducttraining and monitor the workplace,4o checking in withthe complaining party periodically to ensure that noinappropriate or problematic conduct occurs.

In the event of litigation, the wise employer who under­stands standard practice and follows these steps wi II bein the position to show both that it did the right thingand that it took "all reasonable steps necessary to

[d.

37 Sassaman v. Dutchess County, 566 F.3d 307 (2d CiT.2009); Cotran, 17 Cal. 4th at 103, 106, 109; Silva, 65 Cal.App. 4th at 261. See also Casiano, 213 F.3d 278 at 286(finding that "conclusions reached by the investigators[were I well-substantiated by the information they were ableto ferret out").

38 EEOC Guidance, supra note I.

partnership with a witness.32 For this reason, workplaceinvestigators generally do not tape-record interviews.

During her interview, the accused party may suggestwitnesses with whom she would like the investigator tospeak. If relevant, these witnesses should be interviewedas well?3 Thereafter, the investigator may need to returnto the complaining party (or to witnesses) to obtainfurther information. For example, in a sexual harassmentinvestigation, in response to the complaining party'sclaims, the accused party might claim that certainconduct was directed to her by the complaining party.If these allegations were not already addressed in thecomplaining party's interview, the complaining partyshould be given the full opportunity to admit to ordeny the allegations, and to give any other explanationhe or she wishes.

Determining Credibility

In most investigations, there will be conflicting versionsof material events. For example, the complaining partywill claim that certain conduct occurred, while theaccused party will claim it did not occur. Determiningcredibility is crucial to a proper investigation. "If thereare conflicting versions of relevant events, the [investi­gator] will have to weigh each party's credibility.,,34 Avariety of factors go into such credibility determina­tions by the investigator. Among them are:

] . Inherent plausibility: Is the testimony believable onits face? Does it make sense?

2. Demeanor: Did the person seem to be telling thetruth or lying?

3. Motive to falsify: Did the person have a reason tolie?

4. Corroboration: Is there witness testimony (such astestimony by eye-witnesses, people who saw theperson soon after the alleged incidents, or peoplewho discussed the incidents with him or her aroundthe time that they occurred) or physical evidence(such as written documentation) that corroboratesthe party's testimony?

5. Past record: Did the alleged harasser have a historyof similar behavior in the past?35

32 An exception is under the Public Safety Officers Proce­dural Bill of Rights Act, Cal. Gov't Code § 3300 et seq., andsimilar legislation.33 Nazir, 178 Cal. App. 4th at 280; Dominic, 493 F.3d 968at 970--971.34

35

EEOC Guidance, supra note I.

EEOC Guidance, supra note I.

39

40

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prevent harassment, discrimination and retaliation from. ,,41

OU.:urnng.

MI'. Robbins and M . YanolV both att nded U LAII of of LlHV. have each practiced in international

lUI finn and ForfUn 50 environments. and have

j'r'lltIded their own 'ompani $. EXITI, IncorporatedUlld £(JuiI.LIIv. resp ctiveLy, wlIi h provide investigation.,ruining, alld e perl consulting/testimony en/ice.

Cal. Gov't Code §§ 12940 (j) & 12940 (k); Alaniz v.Robert M. Peppercorn, M.D, No. 2:05-CY-2576, 2007 U.S.Disl. LEXIS 32694 (E.D. Cal. May 3, 2007). See also 29C.F.R. 1604.11 ("employer should take all steps necessaryto prevent sexual harassment from occurring").

Mr. Robbins and Ms. Yanow also are foundingmembers of the Society of Independent WorkplaceInvestigators ("SIWI") and gratefully acknowledgethe contributions to this article by their SIWI foundingmember colleagues: Catherine A. Balin, D. Jan Duffy,Katherine J. Edwards, Barbara Yanow Johnson, Chris­

tine Masters and Michael L. Wolfram.