Employers are required to take “reasonable steps to prevent and correct wrongful behavior in the workplace”
(Cal. Govt. Code §12940(k))
“We got a complaint.”
No one wants to hear those words. But the reality is, if you haven’t yet received an employee complaint of discrimination, harassment, sexual harassment, or retaliation, it is only a matter of time before you do. The steps you take next are absolutely crucial to avoid a devastating employee lawsuit. Here are 4 critical Tips for handling a Workplace Complaint and investigation:
Tip 1: Respond Promptly
CA Business Owners have a duty to respond to all claims of discrimination, harassment, sexual harassment, or retaliation promptly. Doing so will bolster the company’s credibility that such behavior is against their standards for the workplace. When responding to the complaint, its important to address the complaint both in person and in writing. Whenever possible, meet with the complaining party in person and hear their claims. This will go very far in creating a positive relationship and in gathering as many relevant facts as possible.
Tip 2: Identify the Best Person to conduct the Investigation
According to the California Department of Fair Employment and Housing (DFEH), “the investigator should be someone who is knowledgeable of laws and standard investigatory practices.” This person should be professional and have prior experience interviewing witnesses, documenting, and gathering evidence. While business owners can utilize an internal human resources employee, remember that often times these complaints can turn into a lawsuit and so the best person to document in preparation for that, is a licensed attorney. If you utilize an employee who doesn’t know how to properly document, interview, and gather evidence, and you do get sued, that evidence can be detrimental to your case. Further, if you utilize an outside investigation, then according to Business and Professions Code Section 7520 et.seq., the investigator must be a licensed private investigator or attorney.
Tip 3: Know Exactly what qualifies as Harassment, Discrimination, and Retaliation
According to the California Fair Employment and Housing Act (FEHA), discrimination, harassment, and retaliation are prohibited. The law required employers take “reasonable steps to prevent and correct wrongful behavior in the workplace” (Cal. Govt. Code §12940(k)). Wrongful behavior is harassing, discriminatory, and retaliatory behavior or actions. This conduct can pertain to protected statuses, such as age, race, disability, and sexual orientation, or it may not. When it does not pertain to protected statuses, business owners should look at their own internal policies and codes of conduct to further guide them in what is and is not acceptable behavior, as well.
Tip 4: Take Remedial Measures
If there is any proof of misconduct, the business owner has a duty to take reasonable steps to prevent and correct unlawful behavior. By doing so, the company is not only fulfilling their duty, but bolstering their relationship with employees who are watching how this is handled, and protecting themselves from a lawsuit.
Here are some effective remedial measures:
- Training: putting employees who have participated in misconduct in required harassment training immediately. Remember, the better the training, the better the defense in a lawsuit and the less likely you are to have further problems with this person offending again.
- Policies and Procedures: You must have policies and procedures on discrimination, harassment, sexual harassment, and retaliation. If you don’t, you are wide open for a lawsuit. If you do, it is best to revisit them after this incident and ensure they are up to date and alive within the company through training and reinforcement.
- Verbal or Written Counseling: If you find someone to have violated a policy or engaged in misconduct, you should document that verbally or in writing and warn them to discontinue such behavior. This documentation will protect you in a lawsuit that complains your business has a workplace that runs rampant with this type of behavior.
- Termination: You may need to terminate someone who is violating your company policy on this topic. However, this can also put you in a wrongful termination lawsuit. It is best to consult legal counsel before terminating the employee.
Simply doing nothing in response to employee complaints is never the option to take because you are not fulfilling your business owner duty, and because it will get worse not better.
Ensure your business has all your policies and procedures up to date now, before the complaint comes, so that half the work is already done for you. To engage us in help with your workplace investigation, schedule a legal strategy session today or call 818-949-8029.
*As always, information is not legal advice and is not intended to be comprehensive and should not be relied upon. Readers should consult a lawyer for current up to date standards. Intended for CA audiences only. No Attorney Client relationship is formed by the viewing or interaction of this information.