As with food, music, and lexicon, different trends in workplace investigations emerge over time. As your partner for tailored solutions to workplace issues, we keep apprised of what topics are taking center stage so your company can be prepared.
In California, it is the employer’s legal responsibility to take reasonable steps to prevent and correct discrimination and harassment in the workplace. Complaints of discrimination, sexual harassment, or other workplace misconduct require the employer to investigate. Accordingly, it is helpful to consider what training and preparation are necessary to handle complaints and have a plan for investigating them, should the need arise.
Best practices include having a written policy defining what types of conduct may violate company policy (and the law), how employees can (and should) notify the company of any possible violations, and what the company’s procedure is when an alleged violation occur. In short – employers need to know about any conduct that might be problematic and employees need to know how to report it.
Here are six trends in workplace investigations we have identified as hot-button issues in workplace investigations:
#1: Sexual Harassment
This category covers a range of behaviors, from leering, to unwanted sexual advances, to assault. With advances in technology, there are a multitude of new ways for harassment to occur, including on social media or in messaging apps. Although California requires certain employers to provide training on anti-harassment, this issue persists.
Inappropriate behavior or messaging, once brought to the company’s attention must be acted on decisively and promptly. All parties involved (the alleged harasser, the complainant, fellow employees, and the employer) will benefit from using an impartial investigator in this sensitive situation. Thoroughness is critical, and an experienced attorney investigator can make sure all parties and witnesses are interviewed diligently and with care. Investigators trained in trauma-informed interview techniques can be critical in cases involving sexual harassment.
#2: Disability Discrimination
Federal and California State laws provide specific protections for employees with a disability (which can be physical and/or mental). This may result in an employer providing reasonable accommodation for an employee with a disability, such as installing a ramp for a wheelchair or time off from work to attend doctor appointments. Employers need to remember that not all disabilities are easy to see. Mental health issues, learning disabilities, and autoimmune issues (to name a few) can all affect an employee’s ability to perform their job.
A workplace investigator can provide an unbiased, timely, and thorough investigation into employee complaints of disability discrimination.
#3: Racial Discrimination
Employers may not discriminate against employees because of their race or ethnic identity. Racial discrimination complaints can involve inappropriate comments about an employee’s accents, cultural differences, or different norms in interacting with people at work after someone has immigrated to the U.S.
Along with an employer (or prospective employer) showing bias in hiring, promotions, and terminations because of race, discrimination can include racial slurs, the display of racially offensive symbols, and even teasing. Such behavior may create a hostile work environment. This misconduct can extend to employees with characteristics associated with a certain race or because they’re married to a person of a certain race or color. This discrimination can occur whether the person who inflicted it is the same race or a different race.
#4: Gender Identity Discrimination
California law prohibits employers from treating someone unfavorably because of their gender, sexual orientation, gender identity, or pregnancy. Such discrimination can apply to the hiring process, pay, benefits, promotions, and termination of employment. A seasoned workplace investigator can provide a sensitive and unbiased approach to handling these complaints.
#5: Age Discrimination
Federal and state laws protect workers 40 years of age and older from discrimination based on age. This discrimination may be based on an employee being fired, demoted, or refused employment due to their age.
Specifically, sometimes this discrimination can be based on firing higher salary employees who have been with the company for several years or forcing older workers to take on unwanted tasks.
#6 General Disrespect of and between Employees (aka Workplace Bullying)
Basic human respect is a reasonable expectation in any workplace. Indeed, a respectful workplace is the goal for a harmonious and productive work environment! Whether it’s coming from a peer or a manager, certain behaviors should not be tolerated. A few examples include bullying (which typically includes repeated attacks and ongoing patterns of behavior), practical jokes, shouting, isolating, shunning, swearing, and being overly critical on an unreasonable basis. California law protects employees from workplace bullying based on protected characteristics (e.g., race, sex, disability).
As we see more investigations requested by companies into this type of behavior, it’s a good time to reflect on training and management styles that focus on respect and demonstrate and communicate a zero-tolerance approach to hostility.
Protecting Your Company
If you are faced with a situation where an employee has filed a complaint with a supervisor, HR or an administrative agency, or an employee has retained a lawyer, it is prudent to act quickly and take the complaint seriously. A trained and experienced internal investigator can get to the bottom of things effectively and efficiently. For complaints involving high-level individuals or cases where the perceived (or actual) bias is a concern – and especially in cases where litigation or an adverse employment action is expected – a trained external attorney investigator brings the expertise and skills that result in a thorough, timely, and unbiased investigation.
Aecus Law is a firm that specializes in workplace investigations. We are trained employment attorneys who bring a wealth of knowledge and experience to provide companies with thorough, timely, and unbiased investigations.
For assistance with a workplace investigation, reach out to us! We are here to help and are happy to discuss your particular situation.
Disclaimer: The content of this post is for informational purposes only and does not constitute legal advice. It shall not be construed as an offer to represent you, nor is it intended to create, nor shall the receipt of such information constitute, an attorney-client relationship. We hope that you will find the information informative and useful, and we would be delighted to speak with you to answer any questions you may have about our firm.