Disciplinary and Harassment Investigations

may put the adequacy of an investigation into issue if the person was still employed and able to take advantage of an employer's corrective measures. However, a post-employment investigation would not be directly at issue since the employee could not take advantage of corrective measures. The City did not and could not attempt to rely on the investigation itself as a defense. Accordingly, if the employee had not quit and the employer was relying on the report in its defense, the privilege would likely not apply. E. U SING AN A TTORNEY TO D IRECT A T HIRD P ARTY I NVESTIGATION When an attorney directs a third party to investigate, and takes no part in the fact finding, the attorney work-product doctrine may prevent disclosure of the investigator’s notes, reports, and other information gathered during the investigation. 46 However, as noted above, it may be necessary to subsequently disclose the investigation report to support discipline, establish that a fair and thorough investigation was conducted. In fact, if a complainant files a charge and/or lawsuit for alleged violations of harassment, discrimination and/or retaliation laws, the investigator may be compelled to disclose the details of the investigative process, his/her notes, report, etc.. The attorney should direct the investigator to gather facts, make any needed credibility determinations, prepare factual findings and issue a report (which will likely be discoverable). Then, the agency attorney can conduct a legal analysis and develop conclusions about harassment, potential liability, and similar legal issues. As long as the attorney does not participate in the fact finding functions, the attorney’s legal analysis is privileged. 47 F. M UST AN O UTSIDE I NVESTIGATOR B E A L ICENSED P RIVATE I NVESTIGATOR ? One issue that has arisen for employers who hire outside consultants or attorneys to conduct investigations into complaints of employee misconduct, including complaints of discrimination and harassment is whether these outside investigators must hold private investigator licenses. California Business and Professions Code sections 7521, et seq., sets forth California’s “Private Investigator Act.” Under the Act, any person engaging in a business as a private investigator without a license is guilty of a misdemeanor punishable by a fine of $5,000 and/or by imprisonment in the county jail not to exceed one year. Under the Act, any person who knowingly engages a nonexempt unlicensed person also is guilty of a misdemeanor punishable by the same amount of fine and term of imprisonment.

Under the Act, a “private investigator” is:

“[A] person…who…engages in business or accepts employment to furnish, or agrees to make, or makes, any investigation for the purpose of obtaining, information with reference to:

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 20