The main purpose of a workplace investigation is to determine whether conduct occurred in violation of the law or organization policies and, if so, to provide a foundation for imposing discipline up to and including termination of the accused employee. When an employee is terminated as a result of a workplace investigation, that employee will sometimes sue for wrongful discharge or one of the many other legal claims applicable in the employment termination context. When litigation ensues, the courts will be very interested in determining whether the discharged employee received “due process.” Under law that is still developing, an investigation that is prompt, fair, thorough, and impartial should shield an investigator and the employer from claims that the investigation was inadequate.
Public Employees Have Greater Process Due
Certain employees of public employers such as police and fire departments have a property interest in their jobs and, as a matter of constitutional and statutory law, must be afforded “due process.” The process due to public employees is more extensive than what is described in this blog. Private sector employees do not have constitutional protections for their jobs. However, they must nevertheless be afforded due process—i.e., fairness—in the investigation if the investigation is going to be of any benefit in the legal proceedings and not expose the investigator and employer to potential claims for liability.
Due Process: Exactly What Process is Due?
Now that we know that investigators must provide due process, exactly what process is due?
Under the recent California case of Jameson v. Pacific Gas and Elec., 16 Cal.App.5th 901 (2017), the court said the real issue was not whether the investigator’s conclusions were correct or whether the investigation could have been conducted better, but rather whether the employer’s disciplinary decision was reached honestly, after an appropriate investigation and for reasons that are not arbitrary or pretextual. The Jameson court based its decision on the prior California Supreme Court case of Coltran v. Rolling Hudig Hall Int’l, Inc., 17 Cal.4th 93 (1998).
In Jameson, the accused employee argued that the investigation was insufficient because the investigator: (a) was not clear about her role; (b) had close ties to the employer; (c) failed to notify the accused that he was the subject of a complaint and the subject of the investigation; (d) interviewed witnesses by phone; and (e) did not interview all the witnesses the accused suggested.
Based upon these cases, this blog presents my views as to what are the most important aspects of due process in workplace investigations in the private sector.
Element #1: Explaining my Role and the Investigation Process. It is my practice to begin interviews with a series of advisements about my role and the investigation process. At a minimum, I tell the witness that I am there to conduct a prompt, thorough, and impartial investigation in an effort to determine as best I can what did and did not occur. I may further explain that my job is to determine to the best of my ability what “more likely than not” occurred. Since I am an attorney, I explain that I am not their attorney and am not representing or advocating for the employer that hired me to do the investigation. I explain how I will deal with confidentiality issues. I make it clear that retaliation against participants in the investigation is strictly prohibited and will also be investigated and acted upon by the employer. Finally, I ask the witnesses whether they understand what I’ve told them and if they have any questions about what I’ve told them or any other aspect of the investigation. I answer their questions honestly and in reasonable detail.
Element #2: Notice of the Charges Against the Respondent. I always give accused employees reasonable notice of the allegations against them. It does not have to include every detail of the accusation or a copy of the written complaint if the complaint was in writing. Moreover, the details of the allegations can be disclosed piecemeal in the course of questioning by an experienced and artful workplace investigator. But reasonable notice of the charges is essential to an investigation holding up if litigation ensues.
Element #3: Reasonable Opportunity to Be Heard. The whole point of giving reasonable notice of charges against a respondent is to create a foundation for also giving them a reasonable opportunity to be heard. Plenty of time should be allocated to hear the respondent out. An investigation must reasonably explore whatever an accused employee says in responses to the charges. If the respondent does not deny the incident altogether, the respondent will usually attempt to provide an innocent explanation for the conduct in question or place it in a context that was not included when the complainant was interviewed.
Conducting workplace investigations is a dynamic process. The investigator must go where the evidence leads. Sometimes the evidence leads to doing two or more interviews of the same witness—possibly shuttling back and forth between the claimant and the respondent repeatedly as new details of the allegations and defenses are revealed. Sometimes non-party witnesses should also be re-interviewed.
Element #4: Testing What the Complainant Says. The investigator must not simply assume the complainant is telling the truth. Evidence should be actively sought to both corroborate and undermine the complainant’s allegation.
Element #5: Testing What the Respondent Says. Similarly, the investigator must dig for evidence to confirm or refute whatever respondents say in their defense.
Element #6: Testing the Truth and Accuracy of What “Neutral” Witnesses Say. Interviewing persons other than the principal parties is usually key to making credibility determinations between the parties. However, seemingly “neutral” witnesses often have hidden agendas or biases that taint the information they provide. Thus, the credibility of third-party witnesses must also be tested.
Element #7: Systematically Evaluating the Evidence. The investigator should attempt to keep an open mind until all witnesses have been interviewed and physical evidence has been seen. Then the investigator should systematically go through all that evidence—much in the way a jury deliberates—to reach a reasoned conclusion as to what more likely than not occurred.
Element #8: Writing an Investigation Report. Strictly speaking, a respondent does not have a right to demand that a report be written or, absent litigation, to compel the employer to provide the respondent with a copy of the report. However, having a well-written investigation report is critical for the employer to defend the propriety and lawfulness of its actions if litigation ensues.
Element #9: Advising the Claimant and Respondent of the Conclusion of the Investigation and the Findings of the Investigator. Once the investigation is concluded, the principal parties should be notified, and they should be told in at least general terms the gist of the findings. It is not necessary to explain how all evidence was gathered or balanced. Nor it is necessary to disclose all the evidence considered. The amount of information that must be disclosed is not very much, but neither is it nothing at all. A reasonable amount of information should be disclosed.
Attorney Gene R. Thornton, AWI-CH understands the legal and practical definitions of “due process.” For a truly fair and legally-defensible workplace investigation, contact Gene R. Thornton, Esq., AWI-CH at Thornton Workplace Investigations, LLC.