On our last employment blog, we recommended steps that an employee should take after being terminated to preserve his or her legal claims. This time, we address what an employer should do upon receipt of a claim or notice of discrimination, harassment, and/or retaliation by an aggrieved employee. Here are some issues we regularly discuss with our employer-clients who have just received such claims:
1. Preserve your data
As an employer, when you have notice of a legal claim being made against you (or belief that a claim is pending), you should immediately take all steps necessary to retain copies of your physical and electronic files for use (by you or the employee) in potential litigation. You should suspend any auto-deletion process that might otherwise be in effect within your electronic systems, especially company e-mail, as failure to do so may give rise to a claim that you intentionally destroyed (or “spoliated”) evidence. Even an inadvertent deletion of files can subject you to liability for spoliation. In addition, if you have any surveillance systems, immediately take steps to ensure that your recordings are not being erased or overwritten. If you are unsure about what categories of documents may be relevant, contact your lawyer before deleting any files.
If your company utilizes any type of internal or external messaging platform, you should also ensure that the communications on the platform are preserved, and that your employees do not have the ability to edit or remove prior messages. Some services, like Slack, have settings that allow you to delete all messages and files after a certain amount of time. If your Slack is set up in this way, immediately disable this setting upon notice of a claim.
2. Internal vs. External Investigation
Often, an employer’s first instinct in response to receiving an employee’s legal claim will be to quickly arrange for an internal investigation of the matter. Before pulling the trigger, we recommend consulting with an attorney about the pros and cons of an internal investigation, for a few different reasons.
As an initial matter, while California law does require an employer to promptly investigate, it does not require such investigation to take place the same day as receipt of the claim. Instead, an employer would be better served by taking a day or two to consult with counsel and weigh the options. This allows you to formulate a proper investigative strategy, and to ensure that you do not damage your own defenses. Generally, we recommend the investigation begin within two to three business days of receipt of the claim.
A key decision will be whether the employer should conduct its own internal investigation, or use a third party/ external investigator. This is a fact-specific question, which will depend on a number of factors, including the size of the company, the severity of the claim, the number and title of individuals accused of being involved, and the experience and credentials of the internal investigators.
If your company has a highly-trained human resource professional with experience in conducting workplace investigations, an internal investigation can be a less-invasive and less costly approach to take. You will want to confirm that your proposed investigator(s) will not have any conflicts with the complaining employee, the individuals accused of being involved, or other witnesses. This is critical, as any sign of impropriety or conflict will immediately call into question the internal investigation and its findings.
On the other hand, engaging a reputable third-party investigator has its own benefits. First, the investigator is presumed to be objective, as he or she would have cleared any conflicts and would have no prior relationships with your employees, which helps prevent the appearance of bias, as may arise in an internal investigation. Second, the involvement of an outside investigator demonstrates to staff that the employer is taking the matter seriously, and that employees are expected and required to fully comply with the investigation. Third, your employees may be more willing to discuss the issues with a third-party investigator because that person is not affiliated with the company. Finally, hiring a third-party investigator ensures that the investigator will have the bandwidth to conduct a prompt and thorough investigation.
3. Protect the confidentiality of the complaint
When dealing with an employee complaint, remember the adage, “loose lips sink ships.” The details surrounding an employee’s complaint, including the complainant’s name, should be kept confidential to the extent possible, and should not be discussed with any individual who does not have a legitimate need to know. This prevents rumors from spreading among your employees regarding the complaint or complainant (which may result in divisive office gossip and rumors), prevents your employees from developing biases before being interviewed by the investigator, and ultimately protects the integrity of the investigation and your staff’s faith in your process for handling complaints.
Alongside your attempts to keep the complaint confidential, you should also inform the complainant that while the company will do its best to maintain confidentiality, there will be times where it will become necessary for the company or its investigator to share details regarding the complaint to appropriate individuals.
The above tips provide some initial guidance to an employer on how to address an employee’s legal claim of discrimination, harassment, and/or retaliation, and serve as questions that the employer can and should explore with its attorneys. If you are seeking representation for an employment-related matter, the attorneys at Dhillon Law Group would be happy to speak with you to see how we can help.
Michael Fleming is an associate who handles employment litigation and counseling at Dhillon Law Group Inc.
