Per California law, employers must take reasonable steps to prevent and correct discrimination, harassment, and retaliation in the workplace.
After an employee complaint is received, an investigation should be started and conducted promptly, as soon as it is feasible; a prompt investigation assists in stopping harassing behavior, helps ensure the preservation of evidence, and sends a message that the employer takes the complaint seriously.
However, some California employers face challenges during workplace investigations. In this article, we will explore some of those challenges:
What to do if the target of harassment asks the employer not to do anything?
It is practically impossible to put the toothpaste back in the tube. Similarly, when a complainant communicates their complaint allegations related to discrimination, harassment, or retaliation to the employer, the employer may have a legal duty to act (to conduct an investigation into the allegations) even if the complainant asks the employer to do nothing or to forget that the complaint was ever communicated.
Investigating Anonymous Complaints
Anonymous complaints should be investigated in the same manner as those with a complainant who identifies themselves. The method will depend on the details provided in the anonymous complaint. If the complaint is sufficiently detailed, the investigation may be able to proceed as any other complaint. If the information is more general, the employer may need to do an environmental assessment –process of finding out what is taking place in the workplace without focusing on a specific complaint or individual- or survey to try to determine where there may be issues. However, the fact that the complaint is anonymous is not a reason to disregard it.
Retaliation
Complainants and those who cooperate in an investigation must be protected from retaliation. Employers should tell complainants and witnesses that retaliation violates the law and their policies, should counsel all parties and witnesses not to retaliate, and should be cautious for signs of retaliation. In addition to terminations or demotions, retaliation could take the form of assignment changes, failure to communicate, being ostracized or the subject of gossip, among others. It is good practice to check back with a complainant after an investigation is completed to ensure that the employee is not experiencing retaliation, regardless of whether the allegation was sustained or not sustained.
Implementing Effective Remedial Measures
California’s Fair Employment and Housing Council (FEHC) regulations make it clear that employers must take appropriate remedial steps when there is proof of misconduct; the behavior does not need to rise to the level of a policy violation or the law to warrant a remedy. Remember, an employer’s legal obligation is to take reasonable steps to prevent and correct unlawful behavior. In order to meet this obligation, an employer should:
- Stop negative behavior before it rises to the level of unlawful conduct, which is why steps should be taken even when the behavior is not yet serious enough to violate the law.
- Impose remedial action commensurate with the level of misconduct and that discourages or eliminates recurrence.
- Look at what the company has done in the past in similar situations to avoid claims of unfair/discriminatory remedial measures.
Remedial measures can include training, verbal counseling, one-on-one counseling, “last chance” agreements, demotions, salary reductions, rescinding of a bonus, terminations, or anything else that will put a stop to wrongful behavior.
Why Choose California Labor Solutions?
California Labor Solutions (CLS) is an HR services firm that was established in 2007. We have conducted hundreds of neutral, objective, and unbiased workplace investigations for employee complaints relating to allegations of discrimination, harassment, retaliation, and various types of employee misconduct.
California Labor Solutions is one of the only HR firms in California that is licensed* to provide external workplace investigations. Avoid the risk and do it right the first time. CLS is your best option for affordable, premium workplace investigation services.