In today’s complex business landscape, employers find themselves navigating a careful balancing act when conducting workplace investigations. While attorney-client privilege can offer protection, it also presents unique challenges. Let’s dive into the intricacies of privileged workplace investigations and explore the pros, cons, and best practices.
The Rise of Privileged Investigations
Increasingly, companies are engaging attorneys to investigate employee complaints of discrimination and harassment. These investigations are often conducted under attorney-client privilege, with investigators providing Upjohn admonitions to interviewees. But this approach raises important questions:
1. How does privilege affect the employer’s ability to communicate findings?
2. Could privilege impede the defence against legal claims by complainants or accused parties?
Understanding the Legal Framework
Attorney-Client Privilege and Work Product Doctrine
The attorney-client privilege generally allows the client “to refuse to disclose, and to prevent another from disclosing, confidential communication between client and lawyer.” (Evidence Code, § 954). This covers all forms of communication, including specific documents.
The work product doctrine, codified in California Code of Civil Procedure § 2018, protects documents prepared in anticipation of litigation. However, employers should be cautious:
– If an investigation would have occurred regardless of anticipated litigation, asserting privilege may be challenging.
– Even if privilege doesn’t apply to a witness interview, the work product doctrine may still protect attorney notes and impressions.
Establishing Privilege/Work Product Protections
Employers can assert privilege/work product when:
1. An attorney conducts the investigation
2. The primary purpose is to provide legal advice (not, for example, business advice or mere “fact-finding”)
It’s important to note that unless the party holding the privilege allows it, there can be no in camera inspection of documents to determine whether the privilege exists.
Potential Benefits and Drawbacks of Privileged Investigations
Benefits
1. Flexibility: Privilege can be waived later, while non-privileged investigations can’t be retroactively protected.
2. Protection: Potentially embarrassing communications may be shielded from disclosure.
Drawbacks
– Waiving privilege can lead to unpredictable questions about the scope of the waiver.
– For harassment claims, employers may consider corrective action, which could make privileged reports less crucial.
Waiving Privilege: Case Studies and Considerations
Wellpoint Case
In a race discrimination/retaliation claim, the employer’s denial of an RFA (Request for Admission) led to a waiver of privilege. The court held that if an employer defends by establishing that it engaged counsel to conduct an investigation and it took reasonable corrective action, the employer has put the adequacy of the investigation directly at issue and has waived attorney-client privilege and the attorney work product doctrine with respect to the investigation.
City of Petaluma Case
The court found that asserting the “avoidable consequences doctrine” as a defence did not waive privilege for a post-employment investigation. However, it noted that waiver can occur if the complainant was still employed at the time of the investigation and able to take advantage of corrective measures resulting from the investigation.
Marken v. Santa Monica-Malibu Unified School District
In this case, the court ordered disclosure of the attorney’s investigation report under the California Public Records Act, citing the public’s legitimate interest in knowing how the District enforces its sexual harassment policy, particularly concerning a public employee who occupies a position of trust and responsibility.
Tesla v. Guangzhi Cao
In this case, the court declined to find waiver where the disclosure of an investigation was limited to “undetailed conclusions about its investigation” and not used in defence of a legal claim.
Best Practices for Employers
1. Carefully Consider Privilege: Assess whether the benefits outweigh the potential limitations on using investigation findings.
2. Document Thoughtfully: Be mindful of how investigation results are documented and communicated.
3. Prepare for Waiver Decisions: Have a strategy in place for if and when to waive privilege.
4. Consult Legal Counsel: Given the complexities, always seek legal advice when navigating privileged investigations.
5. Choose Investigators Wisely: Consider using neutral third-party attorney investigators to mitigate perceptions of bias.
6. Establish Clear Scope and Objectives: Clearly define the scope and agree on the objectives of the investigation at the outset.
7. Be Mindful of Confidentiality: Understand the limitations of confidentiality admonitions, especially in light of NLRA concerns.
Conclusion
Conducting employment investigations under privilege is a powerful tool, but it’s not without risks. By understanding the nuances and potential pitfalls, employers can make informed decisions that protect their interests while ensuring fair and thorough investigations.
Remember, the landscape of employment law is ever-changing. Stay informed, stay cautious, and when in doubt, seek expert legal guidance. The key is to balance the protections offered by privilege with the need for transparency and fairness in addressing workplace issues.