When employee complaints relating to harassment, discrimination, retaliation, bullying, or workplace violence arise, California employers often ask themselves how much information to provide witnesses during HR investigations.
Do employees have the right to have a representative present in their witness interview? When the investigative process is completed, should the employer provide a notice of the factual findings? And if so, to whom and what to include? The answers to these questions and more are detailed below.
Confidentiality
Confidentiality is a crucial component of HR investigations, as it protects the integrity of the investigative process. Therefore, witnesses and parties involved cannot disclose what is discussed during an interview or any part of the investigation with others during the pendency of the investigation; doing so may taint the investigation by intentionally or unintentionally influencing other testimonies.
Protection from Retaliation
Employees who participate in investigations—whether they’re the complainant, a witness, or even the accused party—are legally protected from retaliation by State and Federal laws. Therefore, they cannot be punished, demoted, or harassed for being part of an administrative investigation in California.
Notice of the Findings
Once the employee complaint investigation has been completed, both the complainant(s) and the respondent(s) should be informed of the factual findings. This communication can be as simple as explaining that all of the findings were based on the testimonies and evidence gathered, whether each allegation/sub-allegation was substantiated, and that appropriate action has been taken, if applicable. We recommend that the employer avoid disclosing specific details about any testimony and/or evidence gathered or what, if any, disciplinary measures were taken.
Representation Rights
California employees in unionized environments are entitled to have a union representative during investigative interviews when the employee requests one, if they believe they might be subject to disciplinary action, and/or when their work conduct is being investigated. Preferably, the representative should not be a witness to the fact pattern or involved in the instances that prompted the HR investigation.
Why choose California Labor Solutions?
California Labor Solutions (CLS) is one of the only HR firms licensed* to conduct workplace investigations in California. We serve private businesses and public-sector organizations throughout the state. We have conducted hundreds of neutral, impartial, objective, and unbiased workplace investigations related to identifying issues and risks within the organization as well as for employee complaints relating to allegations of discrimination, harassment, retaliation, workplace violence, and various types of employee misconduct with the utmost quality, detail, and efficiency.
*California Private Investigator License Number 26311.
Disclaimer:
Please note that the updates, advisories, and regulations we receive from the promulgating agency often contain ambiguities and/or are often amended, modified, or updated. This material/article/email does not contain any legal advice. The information and opinions expressed herein are based on our reasonable interpretation of the issuing agency’s publication at the time the opinion is expressed and is, therefore, subject to change based on further developments. The effect of the opinions expressed may be different based on your particular circumstances, and it is recommended that you not rely upon these general opinions prior to obtaining a consultation with your legal and/or financial advisors.