FALL 2018 TODAY’S GENER AL COUNSEL
Labor & Employment
Investigations Post #MeToo By Nancy Pritikin and Reanne Swafford-Harris that a harassment case will end up in full-blown litigation, investigations and investigators will come under greater scrutiny, which will require procedures and documentation relating to the investigation to be comprehensive and understandable to a jury. Cognizant of this trajectory, employers, employment attorneys and investigators should model an investigation using the following seven-step formula:
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orkplace investigations are under scrutiny. Many employees, shareholders and the public have the unreasonable expectation that every time an employee complains of harassment, the alleged harasser will be swiftly terminated. At the same time, employers are obligated to investigate harassment complaints fairly and with due regard for the rights and privacy of those making the report, as well as the accused. Legislative action is requiring greater transparency regarding the outcome of investigations and the resolution of harassment complaints. For example, the California Legislature has bills pending that would make it unlawful to require arbitration of harassment claims, ostensibly in an effort to force employers to publicize their investigation procedures and outcomes. A pending bill would limit the ability of parties to require non-disclosure of facts relating to sexual harassment claims as part of a settlement. Under the new federal tax code, settlements of sexual harassment claims are no longer tax deductible as a business expense.
This article addresses best practices in approaching internal investigations in the current environment and, in particular, on sexual harassment investigations. A few observations about the future of workplace harassment claims: • Harassment claims will be more likely to go to trial where there is any real dispute about the underlying facts. If confidentiality clauses are no longer permitted as part of a settlement agreement, employers and the individual managers accused of harassment will be reluctant to resolve claims for large sums of money. • Individuals who engage in harassment will be dealt with more swiftly and with obvious outcomes — more terminations, demotions or other consequences — that will be clear and made public in the workplace. • Those accused of harassment will be more likely to bring their own claims when they believe that they were unfairly treated and their termination was not warranted. • Because of the greater likelihood
Scope of the Investigation: Some complaints of workplace harassment are focused and specific, but others are placed in the context of other situations, in which harassment is only one of many allegations. There is a range of options when there are multiple claims. This includes separating out and focusing on the harassment claims, since any resolution of those claims will be governed by the new legislation, where other aspects of the investigation will not be taken into consideration. The following should be considered in deciding on the scope of the investigation: (a) Can the harassment claims be investigated separately, even if there is some overlap with other claims? (b) Is the alleged harasser in the same work group as the complainant? and (c) Is more than one individual allegedly subjected to harassment, and are they all in the same work group?
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Direction of the Investigation: Historically, in most investigations where there was a high likelihood of future litigation, counsel directed the investigation so that the work product privilege applied. However, in light of the demands for transparency, consideration should be given in each instance to whether or not a claim of privilege will be asserted from the outset of the investigation. In the past, counsel would direct the investigation and assert privilege if the