In any kind of business, there is a chance that employers will be required to investigate one or more employees at some point for allegations of misconduct such as discrimination or sexual harassment. A properly conducted workplace investigation is not only legally required but can also go a long way in protecting companies and mitigating risks for future problems. In this webinar, Diana Maier and Beth Arnese go over the key things to know about workplace investigations so that you can garner the maximum legal protection such investigations may provide. Topics addressed include when to investigate, how to prepare for an investigation, how to interview witnesses, how to prepare a written report, what to do after the investigation, and overall best practices for investigations.

1. Law Offices of Diana Maier
Employment and Privacy Attorneys
www.dianamaierlaw.com
Workplace Investigations 101
Presented by:
Diana Maier & Beth Arnese

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TODAY’S SPEAKERS
Diana Maier received her J.D. from
Stanford University Law School in
1998. She has been practicing law
for 18 years, 15 years in
employment law. In addition, Diana
practices privacy law and is IAPP
certified in both United States and
European privacy law (CIPP-US/E).
Diana also conducts workplace
investigations in Spanish and
English.

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TODAY’S SPEAKERS
Beth Arnese received her J.D. from
UCLA Law School in 2005. She
practiced law for over 10 years, at
both large firms and for the public
sector, before joining the Law
Offices of Diana Maier in 2016. She
specializes in litigation as well as
employment and privacy law. Beth
also conducts workplace
investigations.

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WEBINAR OVERVIEW
Topics We’ll Discuss:
• When to investigate
• How to prepare
• How to interview
• How to prepare a written report
• What to do after the investigation
• Best practices

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WHEN DO YOU NEED TO CONDUCT A WORKPLACE
INVESTIGATION?
• Absolute duty to investigate: claims of discrimination, harassment,
retaliation, whistleblowing complaints, workplace violence, and
accidents/safety violations.
• Suggested: demand letters, lawsuits, theft, other misconduct;
violations of workplace policies; when someone uses “the magic
words” of the above terms, even if using them incorrectly.

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WHY DO YOU HAVE TO INVESTIGATE?
• Under California and federal law, employers have a legal duty to take
“all reasonable steps” to prevent harassment, discrimination, and
other unlawful employment practices. Govt Code Section 12940.
• An investigation is considered one of the best “reasonable steps” an
employer can take to prevent illegal activity.
• Could create an independent cause of action if the underlying
harassment actually occurred. Trujillo v. North County Transit Dist.
(1998) 63 Cal.App.4th 280.
AS A RESULT.....

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WHAT TRIGGERS THE DUTY TO INVESTIGATE?
• If you have knowledge of potential harassment, discrimination, etc., an
investigation is the best way to go.
• A complaint does not have to be submitted in writing or through HR or
the formal complaint process your company has.
• May include off-duty conduct.
• Bottom line is that it’s almost always a good idea to investigate
workplace complaints.

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BENEFITS OF AN INVESTIGATION
(UNDER CALIFORNIA LAW)
• An investigation may help prevent or reduce liability for harassment
claims (can limit damages to date employee made complaint).
• Can give companies a good faith basis to take adverse employment
action against a wrongdoer.
• An investigation gives you mountains of valuable information about
problems in the workplace, problem employees, practices that you
might not be aware of, current workplace climate, other legal issues
that might be brewing, etc.

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BENEFITS OF AN INVESTIGATION
(UNDER FEDERAL LAW)
An employer may be able to avoid liability or limit damages by
establishing an affirmative defense that includes two elements:
1. The employer exercised reasonable care to prevent and
correct promptly any harassing behavior (this is where the
investigation helps).
2. The employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer
or to avoid harm otherwise.
Faragher v. City of Boca Raton, 524 U.S. 774 (1998)
Ellerth v. Burlington Industries, Inc., 524 U.S. 742 (1998)

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WHAT HAPPENS IF YOU DON’T INVESTIGATE?
• The complaining party may be able to show that your company failed to
prevent harassment/discrimination from occurring or ratified unlawful conduct.
Little v. Windermere Relocation, Inc., 265 F.3d 903, 913 (9th Cir. 2001).
• They may have independent cause of action for failure to prevent
harassment/discrimination, if the underlying harassment/discrimination did
actually occur.
• They may also use the lack of an investigation to argue for punitive damages.
• If the complaining party files a lawsuit, they can use the lack of an
investigation to make the company look incompetent/uncaring/bad. They may
hire an expert witness to challenge the adequacy of the investigation.

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ATTORNEYS AS INVESTIGATORS
• In California, a third-party investigator must be a licensed private
investigator or a licensed attorney.
• An investigator may be called as a witness.
 If an attorney provides ongoing advice and counsel to a
company, that attorney might be considered to be biased in
the investigation.
 Attorney may lose attorney-client privilege in the
investigation.

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INTERNAL PERSONNEL AS INVESTIGATORS
• Internal company personnel can also investigate (not required to be
an attorney as in a third-party investigation).
• If you perform an investigation in-house, make sure the investigator is
truly neutral (and qualified to do the investigation).
• Has the company trained the investigator? Has the investigator
completed training outside the company by a reputable investigations
association like AWI? Does the in-house investigator have any
relationship with/connection to the individuals in the investigation?
• Have in-house counsel oversee the investigation so that you can
claim privilege if needed.

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ETHICAL ISSUES TO UNDERSTAND
• If an attorney handles the investigation, they can be prohibited from
representing the client in a subsequent litigation because they might
be a fact witness in the case.
• Attorneys do not have an attorney-client relationship with the
witnesses.
• Attorneys should advise the people they are interviewing that they
cannot guarantee that information discussed during the interview will
remain confidential. “As confidential as possible” is a good term to
use.

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PRIVACY ISSUES
• The investigator should document what they are doing in the
investigation (i.e., reviewing emails, voicemails).
• Companies should have policies stating that an employee does not
have a complete expectation of privacy at work, particularly regarding
company email, voicemail, lockers, desks, etc.
• The policies should also say that the company has a right to inspect
all company-owned equipment, anything created using company
hardware or software, or anything created on company time.

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BEFORE THE INVESTIGATION: PREPARATION
• Gather documents, including any applicable policies/rules.
• Establish a contact (who is not involved in the investigation) at the
company who will set up interviews.
• Prepare a witness list (determine the order of witnesses - typically
interview the complainant first and the alleged wrongdoer second).
• Prepare outlines of topics to address.
• Determine the location of the interviews.
• Start right away.

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ADMONITIONS TO THE PEOPLE YOU’RE INTERVIEWING
• Brief summary of the investigation issue
• Summary of the process
• You will limit disclosure to those who “need to know,” but you cannot
guarantee confidentiality. Likewise, ask them not to discuss what
you’ve talked about with anyone (this can be tricky).
• Explanation that retaliation based on participation in the investigation
is not allowed

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INTERVIEWS
• Ask the witnesses who else would have information.
• Remind interviewees that they should not retaliate because of the
investigation. If they feel they are retaliated against, they should report
it right away.
• Other considerations: taking notes (computer vs. notebook), recording
the interviews.

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HOW TO EFFECTIVELY INTERVIEW
• Start with open-ended questions.
• Softballs are a good warm up: ask about background, etc.
• Move to the specific situation that is the subject of the investigation.
• Probe witness with follow-up questions, ask about knowledge of any
relationships between complainant and alleged wrongdoer.
• Ask if there are other witnesses with information, find out about
supporting documents.

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HOW TO EFFECTIVELY INTERVIEW, Cont.
• Ask if there’s anything else the witness thinks the investigator should
know.
• Consider letting the complainant know that you will come back with
the accused’s side of the story and ask them follow-up questions so
they don’t feel like it’s a case of the victim becoming the accused.
• Make credibility assessments (this is why it’s good to interview in
person).

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WHERE TO CONDUCT THE INTERVIEWS
• Ideally, in a private office.
• If there is no privacy in the workplace (i.e., no offices or only offices
with glass), consider conducting interviews off-site.

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NOTE-TAKING DURING INTERVIEWS
• Take very detailed notes.
• Include only facts. For assessing credibility and other non-factual
issues, use a different document.
• Put the date on your notes.
• Write down information about all the documents you provide to or
receive from the interviewees.
• Consider taking notes for yourself on decisions about who to interview
and not interview or other judgment calls you make during the
investigation.

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WITNESS STATEMENTS
• If possible (there is time and inclination by witness), confirm accuracy
of notes and obtain initials.

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STEPS TO TAKE AFTER INTERVIEWS ARE DONE
• Make sure you interviewed everyone with information (this is a
judgment call based on how much money the company is able to
spend on the investigation, etc.).
• Consider whether you need to ask the complainant or alleged
wrongdoer any additional questions, based on what you learned from
the other interviewees.
• Follow up with any witness where you have additional questions
because of subsequent information you learned.

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WHEN DO YOU WANT A WRITTEN REPORT?
• In most cases, companies will want a written report.
• If the investigation takes place after litigation has commenced, you
may not want a written report (because it will be discoverable in
litigation).
• If you’re going to take adverse action, written report may be helpful.
• If you’ve got a situation of liability for employer, a written report can be
a negative.

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DRAFTING THE REPORT
• Outline all of the complainant’s allegations.
• Include the facts, not legal analysis. Don’t make legal conclusions; this
is what standard counsel is for.
• Include investigator’s assessment of credibility of witnesses, if
appropriate.
• Set forth investigator’s conclusions (this can be harder than it sounds).
• Consider informing the complainant of conclusions reached and
action taken.

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CORRECTIVE ACTION FOLLOWING THE INVESTIGATION
• The investigator should not be involved in the decision of what to do.
• If harassment or discrimination took place, the employer must remedy
the situation, including:
 Termination
 Discipline (suspension without pay, written warning)
 Training
 Counseling
 Transfer, demotion, reduction in pay

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SOME CONSIDERATIONS
• What has the company done in the past in similar circumstances?
(Consider whether this action is consistent.)
• Has the alleged wrongdoer done anything similar in the past? Has the
alleged wrongdoer been truthful?
• Have other people exhibited conduct that the alleged wrongdoer is
accused of?
• Is there anything in the company’s policies about this?

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OPTIONS FOR THE COMPLAINANT
(IF DISCRIMINATION OR HARASSMENT TOOK PLACE)
• Paid leave
• Company-paid counseling
• Transfer (if they want one)
• Severance package with release (if they want this)
• Payment for counseling, medical bills, etc.

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INVESTIGATION BEST PRACTICES
• Thorough (interviewing all appropriate witnesses, gathering
appropriate documents)
• Prompt
• Well-documented (by a report or with complete and accurate notes)
• Confidentiality protected to extent possible
• Results communicated to victim and alleged harasser
• Corrective action taken
• Unbiased

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• Law Offices of Diana Maier’s “Key Ingredients for Workplace Investigations,” available at
http://dianamaierlaw.com/key-ingredients-for-workplace-investigations/
• Law Offices of Diana Maier’s “Workplace Investigations: Why Hire an Attorney
Investigator,” available at http://dianamaierlaw.com/workplace-investigations-why-hire-
investigator/
• Law Offices of Diana Maier’s “Workplace Investigations and the Fair Credit Reporting
Act (FCRA),” available at http://dianamaierlaw.com/investigations-word-on-fair-credit-
reporting-act-fcra/
• Practice Pointers for Workplace Investigations in California,
https://www.shrm.org/legalissues/stateandlocalresources/pages/practicepointers.aspx
• Association of Workplace Investigators, http://www.aowi.org
RESOURCES

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DISCLAIMER: The information contained in this presentation has been prepared
by the Law Offices of Diana Maier and is not intended to constitute legal advice.
The Firms have used reasonable efforts in collecting, preparing, and providing
this information, but do not guarantee its accuracy, completeness, adequacy, or
currency. The publication and distribution of this presentation are not intended to
create, and receipt does not constitute, an attorney-client relationship.
COPYRIGHT © 2016, Diana Maier and Beth Arnese. All rights reserved.
THANK YOU FOR LISTENING

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CONTACT INFORMATION
Law Offices of Diana Maier
www.dianamaierlaw.com
Diana Maier
415-515-1707
diana@dianamaierlaw.com
Beth Arnese
415-283-8970
beth@dianamaierlaw.com
For attorneys seeking MCLE credit:
Email your bar number to
Lauren McMahon at
lauren@dianamaierlaw.com