Finding the Facts - Disciplinary and Harassment Investigation

In reaching this decision, the Court cited the California Supreme Court decision in Cotran v. Rollins Hudig Hall Intern. Inc . 64 which held that fairness in the investigation process “contemplates listening to both sides and providing employees a fair opportunity to present their position and to correct or contradict relevant statements prejudicial to their case, without the procedural formalities of a trial.” Jameson and Cotran stand for the principle that courts will not second-guess whether an employer’s investigation could have been more thorough or effective, as long as the investigative process is inherently fair. If this criterion is met, an employer’s investigative efforts may serve a basis for defending against an employee’s wrongful termination claim. LCW’s attorneys can advise and guide your district through the multiple steps of the investigation process, from selection of an investigator to notice of the completion and outcome of the investigation and any actions to be taken after completion of an investigation report.

Important Consult with legal counsel before deciding whether to turn over or turning over the written report or any other materials gathered during the investigation. The investigator can be a supervisor, a human resource or personnel employee, an outside consultant, private investigator, or an in-house or contract attorney. It is important that one individual be in charge of the investigation without interference from others in the organization.

To fulfill his/her responsibility for acting promptly and fairly, the investigator must be provided the necessary resources, training and access to documents, information, and witnesses.

1. C REDIBILITY , R ANK AND E XPERIENCE The DFEH requires “[i]mpartial and timely investigations by qualified personnel.” 65 In general, when an investigation is conducted internally, it is preferable to have the investigation conducted by an upper management employee who is higher ranking than those to be interviewed and who has established credibility within the district. However, a lower ranking investigator can be vested with authority by a supervisor to require employees who are otherwise above him/her in the chain of command to participate in an administrative interview. The investigator should also be someone who is knowledgeable in the area of discrimination and harassment, including the district’s policies and procedures that prohibit discrimination and harassment and the type of conduct that violates the district’s policy. Since investigating is a learned skill, the investigator should also either be trained or have experience in conducting investigations. The investigator should also have sufficient communication skills to conduct the interviews and deliver written or verbal findings. 66 . The Guide requires that investigators be qualified and knowledgeable about standard investigatory practices, including knowledge of

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