No Complaint, No Investigation? No way.
The hardest investigation to conduct is one without a complaint. Though difficult, it is not uncommon. Many times, parties and witnesses are unwilling to come forward, so all employers have to go on are gossip and rumors. However, do not confuse the lack of a complaint with a lack of a responsibility to investigate. To do so would be to potentially commit a very costly mistake.[1]
According to the California Department of Fair Employment and Housing (DFEH), employers have a duty to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.”[2] Part of this duty involves looking into matters as soon as the employer “knows or should have known” of misconduct.[3] Thus, even in the absence of a complaint, gossip and rumors may be enough to put employers on notice of misconduct.
So, how does one go about conducting an investigation without a complaint?
If the gossip and rumors involve possible concerns by discernible parties or individuals, meet with those individuals and provide them with an opportunity to share or elaborate on any concerns. Explain the importance of reporting concerns in order to protect the safety and rights of all employees. Also, be sure to emphasize that parties and witnesses are legally protected from retaliation. In some cases, this may be enough to encourage employees to come forward and file a complaint.
If the rumors are more general or vague, consider conducting an “organizational assessment” or “climate review.” This can be conducted via a survey wherein employees have the opportunity to provide feedback regarding their work environment. The survey should also include questions regarding whether the employee has any specific concerns regarding harassment, discrimination or retaliation. Consider also including questions about whether the employees would feel comfortable reporting such claims. Another option, if practical, would be to set up appointments for employees to meet with Human Resources personnel for an in-person meeting to discuss any concerns. In either case, the employer should underscore its commitment to addressing issues of concern as they are raised, as well as the employer’s goal of improving the climate. Knowing their concerns will be taken seriously may help persuade employees to come forward with making a report. Still another option is to set up an anonymous hotline.
If the above methods reveal any instances of misconduct, the employer should investigate further and take “immediate and appropriate corrective action.”[4] This includes, but is not limited to, providing employees with additional training; taking disciplinary action against responsible individuals; or implementing institutional changes to combat a culture of harassment and discrimination.
If the methods above do not reveal any concerns of misconduct, the employer should confer with their counsel to determine whether they have taken “all reasonable steps necessary to prevent discrimination and harassment from occurring.”
Though investigations without a formal complaint can be difficult, it is part of the important work employers need to do to ensure a safe and harassment free workplace. Providing a safe work environment is not only a legal responsibility, but also important to maintaining a happy and efficient workforce. The costs of ignoring toxic work culture do not simply arise from legal liability. It can also cause high employee turnover, lack of effective communication between employees, and frustration of company goals. It is essential for employers to have systems in place to protect employees and provide avenues to remedy misconduct.
Linh L. Luong is an Associate Attorney with Van Dermyden Maddux Law Corporation. Her practice focuses on conducting workplace and Title IX campus investigations.
[1] According to a 2017 report by specialty insurance company Hiscox, the average cost of employee lawsuits for small- to medium-sized enterprises with fewer than 500 employees was $160,000. See https://www.hiscox.com/documents/2017-Hiscox-Guide-to-Employee-Lawsuits.pdf.
[2] Cal. Gov. Code § 12940(k), https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=GOV&division=3.&title=2.&part=2.8.&chapter=6.&article=1.
[3] Cal. Gov. Code § 12940(j).
[4] Id.
The foregoing is for informational purposes only and is not legal advice, nor should it be construed as such.
