HOT TOPICS IN EMPLOYMENT LAW: WORKPLACE INVESTIGATIONS. Camille Hamilton Pating, Senior Of Counsel Chair, Workplace Investigations Practice

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1 HOT TOPICS IN EMPLOYMENT LAW: WORKPLACE INVESTIGATIONS Camille Hamilton Pating, Senior Of Counsel Chair, Workplace Investigations Practice September 30, 2016

2 Overview Workplace Investigation Fundamentals Confidentiality Social Media Privacy Attorney-Client Privilege Employer Liability for Investigations 1

3 Workplace Investigation Fundamentals Issues to consider at the outset Is there a duty to investigate? Nature and scope of investigation Who should conduct the investigation? 2

4 When to Investigate When employer becomes aware of potential violations of law, regulations, codes of conduct or agency policies Ethics Employment Discrimination Harassment Whistleblower Workplace Violence Allegations or indications of serious misconduct where facts are in dispute or unknown 3

5 Determine Nature and Scope of Investigation Carefully consider the allegations and their source Formal or informal complaint Social media Observation of unusual circumstances Rumors Lawsuits, grievances or other proceedings Anonymous hotline Other sources 4

6 Who Should Conduct the Investigation What is the nature of the allegations? Are high profile subjects or complainants involved? Considerations Are there conflict of interest issues? Is it appropriate for agency counsel to undertake targeted initial inquiries? 5

7 Confidentiality

8 Directives To Employees Can employer demand that employee not talk to others about the investigation? Los Angeles Community College District (2014) PERB Decision No E (Issued on 12/24/14) Banner Health System (2012) 358 N.L.R.B. No. 93 7

9 Takeaways on Confidentiality Confidentiality can be required but it cannot be a boiler-plate requirement and must be justified by operational necessity Don t Do Include blanket prohibition on communicating with others as part of any investigation. Evaluate each case individually to determine if a prohibition is warranted. Include an exception for communications with the employee s union representative and/or counsel. If justified, make restrictions as narrow as possible. 8

10 Social Media Privacy

11 Evidence from Social Media Accounts Can employers access employee s personal social media account if relevant to an investigation for misconduct? 10

12 Social Media In Investigations 11

13 Takeaways on Social Media Privacy Don t Do Rely on unconfirmed internet information in making investigative findings Determine if there is a reasonable basis to investigate social media Make sure the investigation is targeted and well documented Independently confirm questionable information in witness interview 12

14 Are Investigations Attorney-Client Privileged? City of Petaluma v. Superior Court of Sonoma County (Cal. App. 1st Dist. June 8, 2016, No. A145437) If an attorney-investigator conducts an investigation in anticipation of litigation, but without offering legal advice, is the investigation protected by attorney client privilege? 13

15 But Consider Takeaways on Privilege Generally, attorney must be acting in the role of a legal advisor If an attorney acts in a fact finding only capacity the attorney-client privilege likely will not apply Disclosure (inadvertent or not) to outside parties 14

16 Takeaways on Privilege Evaluate whether affirmative defenses relying on the investigation will be asserted, manage communications with the investigator accordingly Evaluate whether investigation is being undertaken in anticipation of litigation Know the client s wishes on draft report and communications with investigator 15

17 Takeaways on Privilege Scope of investigation letter Identify whether the investigation is purely fact finding, or will include legal analysis and conclusions State whether the report is being prepared in anticipation of litigation and is intended to be privileged Consider impact of disclosure under Public Records Act and other public disclosure laws 16

18 Potential Employer Liability Issues

19 Investigation Must Be Adequate Inadequacy may be demonstrated by: Lack of a formal investigation plan Delay in interviewing the employees Failure to take witness statements Decision to interview both the accused and the accuser simultaneously Failure to interview witnesses other than the accused and the accuser Allowing the investigation to be completed by the employees supervisor, rather than a trained impartial HR employee (Mendoza v. Western Medical Center of Santa Ana, Inc. et. al, 2014 WL (Cal. App.) No. S216669, February 21, 2014) 18

20 Investigations as Evidence of Discrimination Is a botched investigation admissible as evidence of discrimination? Failure to follow policy [providing accusation] Failure to interview exculpatory witnesses Failure to consider witness corroboration of subject s denial Iftikhar Nazir v. United Airlines, Inc., (2009) 178 Cal. App. 4th 243; 100 Cal. Rptr. 3d

21 Failure to Take Corrective Action Following Investigation 20

22 Investigations as Retaliation Does an employee have a cause of action for an unjustified investigation as discriminatory harassment or a pretext for retaliation? Booker v. City of Richmond, et al. Contra Costa County Superior Court, Case No., MSC

23 Negligence in Investigation Does a terminated employee have a cause of action for negligence and breach of procedural fairness in investigation against Investigator due to lack of notice, analysis of evidence? Court held: Procedural fairness rules do not apply to employer who conducts an investigation to determine existence of harassment and if warranted impose discipline Ditomene v. Boulanger, 2014 QCCA

24 Takeaways for Potential Liability Issues Make sure client is following protocols for initiation of investigations and corrective action Confirm Notice, adequacy of analysis, conclusions and report Credibility determinations must be supported by objective factors Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, June 18,

25 Presenter Camille Hamilton Pating Senior Of Counsel Chair, Workplace Investigations Labor and Employment Practice Group Oakland Office th Street, Suite 1500 Oakland, CA (510)