On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Lawsuit Prevention for Employers
California law requires employers to conduct a prompt, thorough and objective investigation into complaints of workplace harassment, immediately upon the receipt of a complaint. Once this is properly conducted, the employer is required to aggressively remedy any unlawful conduct the investigation revealed.
Employers should anticipate that any mistakes or oversights made during the investigation will result in a lawsuit brought by the alleged victim. Further, mistakes will be used to demonstrate the employer’s “callous indifference” to its legal duty to provide a harassment-free workplace for employees.
The requirements of a legally-compliant harassment investigation are complex, and vary widely depending on the circumstances unique to every complaint. For this reason, employers are well-advised to immediately seek the legal advice of a labor law expert who specializes in conducting harassment investigations. This is the only way to avoid the serious mistakes commonly made by employers during the investigation process, which lead to later lawsuits.
If the employer does not have a legally-enforceable arbitration policy distributed to employees when a complaint is registered, it will be forced to defend a harassment suit before a jury, which is typically comprised (often exclusively) of employees, not business owners or supervisors. Such juries are rarely sympathetic to employers, according to California jury trial statistics.
The following six points are vital to the protection of employers:
- The awareness on the part of any supervisory employee of a complaint is legally imputed to the employer at the moment it is received, even if this information is never shared with other members of management. This “subjective awareness” invokes the employer’s duty to conduct a prompt investigation, even if the complaint seems questionable or even unfounded.
- Only licensed private investigators and attorneys can conduct workplace investigations. H-R consultants cannot legally conduct workplace investigations, unless they are licensed private investigators. California law (Business and Professions Code, section 7521) makes doing so a crime in California, unless the investigator is acting under the direct supervision of a licensed attorney.
- The “investigation” required of employers is not something to be taken lightly. The failure to conduct a prompt, thorough and objective investigation gives rise to an independent cause of action for punitive damages, even if the underlying complaint of harassment is later determined to be unfounded.
- The legal requirement that this investigation be “objective” likely precludes reliance on employees of the employer, for the reason that any employee would be at least arguably unable to conduct an unbiased investigation.
- A properly-conducted investigation typically requires the temporary removal of the alleged harasser from the workplace for the duration of the investigation. This is particularly true if the accused is a supervisory employee. This precaution is often critical to protecting the integrity of the investigation. The employer should assume that the mere presence of the accused during the investigation could have the effect of discouraging witnesses from coming forward and/or cooperating fully.
- However, the employer must be vigilant to fully observe the presumption of innocence of the accused, without compromising the integrity of the legally-mandated investigation. Failure to do so will risk a lawsuit initiated on the part of the alleged harasser. Striking this delicate balance is perhaps the best reason to engage lawyers who are expert in conducting harassment investigations immediately upon the receipt of any complaint.
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. http://www.jaygputnam.com/articles-by-jay-g-putnam/