On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Lawsuit Prevention for Employers
California law requires that employers conduct a 1) prompt, 2) thorough and 3) objective investigation of every complaint of workplace harassment, even those that initially seem completely unfounded. This is Labor Law 101, and if you need convincing, consider this: failure to conduct the required investigation can form the basis of an independent lawsuit even if the original claim of harassment later proves to be groundless.
Investigation Must Be Prompt
Once an employer is placed on notice (through the awareness of any supervisor) that a complaint has been made, it is well-advised to immediately set about commencing the investigation.
Caution: an employer’s duty to investigate requires nothing more than circumstances that would cause a reasonable person to believe that a complaint of harassment was attempted. This is true, regardless of company rules requiring that complaints be in writing, or otherwise take a particular form.
Preliminary considerations include immediate precautions to protect the alleged victim from further acts of harassment or unlawful retaliation. This often requires that the alleged harasser be removed from the workplace immediately, as a means of protecting the integrity of the investigation. This is particularly true if the alleged harasser is a supervisory employee.
Investigation Must Be Thorough
The basic procedures that will govern the investigation must be specified in a written policy, which is required by law. If a legally-compliant written policy is not in distribution before the receipt of a complaint, the employer will confront additional (and unnecessary) legal exposure, which serves to further complicate what is already a difficult legal challenge under the best of circumstances.
If the legal requirements already imposed on employers for responding to harassment complaints were not burdensome enough, the new regulations serve to further complicate the legal “gauntlet.”
Effective April 1, 2016, The California Fair Employment and Housing Council (FEHC) issued new regulations which require employers to engage in several additional specific actions as a means of preventing and correcting workplace sexual harassment.
Among other requirements, the new regulations add section 11023, which states that the employer’s mandatory written policy must “instruct supervisors to report any complaints of misconduct to a designated company representative.” Second, employers with 50 or more employees must include this requirement as a topic in the legally-mandated sexual harassment prevention training that is required of all such employers in California.
Section 11023 strengthens the existing requirement that employers must “fully and effectively” investigate complaints by requiring, among other things, that impartial and timely investigations be conducted by “qualified personnel.”
Investigation Must Be Objective
The impartiality requirement mandates that the investigation be conducted by disinterested parties, which typically excludes management and supervisory employees, as well as owners and their family-members.
The “qualified personnel” requirement appears to restrict the investigative function to those with demonstrated expertise in the conduct of workplace harassment investigations, and who are equipped to make the credibility and other evidentiary determinations that are typically required in this process.
Taken together, these requirements frequently result in employers engaging experienced labor lawyers specializing in workplace harassment disputes to report findings, conclusions and recommendations to the employer after conducting a prompt and thorough investigation.
The employer’s scrupulous compliance with the legally-mandated investigation procedures summarized above will inevitably have a profound impact on its prospects of avoiding, and successfully defending, a prospective lawsuit. This is because mistakes or oversights made in the process of gathering source information from percipient witnesses, documentary evidence and elsewhere almost always result in a skewing of the findings, conclusions and recommendations derived therefrom.
This is no minor matter; as such mistakes can, and often have, resulted in the termination of an accused employee, based on flawed evidence, who predictably responds by successfully suing the employer.
Such a situation can arise, for example, if an employer’s investigation concludes, as is often the case, with a finding that the original complaint was unsupported by the evidence produced. If, for example, this finding was based on witness statements that are later, in the course of a lawsuit, deemed to be inadmissible hearsay evidence and excluded from the employer’s evidentiary arsenal as such, this by itself would likely prove fatal to the defense.
For these reasons, the engagement of competent outside legal counsel immediately after a complaint is made known to any supervisor is often seen as a prudent, if not indispensable, investment.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/