In our prior blog post, “Build Bridges, Not Barriers,” we discussed how to make the most of an interviewee’s representative during an interview and ways to head off any potential friction in advance. This blog post discusses some suggestions and options investigators have when a representative’s conduct crosses the line into disruptive behavior. While the vast majority of representatives do not cross this line, these tips will help you if you ever encounter the rare exception.

Investigations of police or firefighter misconduct in California are governed by two key statutes: the Public Safety Officers Procedural Bill of Rights Act (POBR) and the Firefighters Procedural Bill of Rights Act (FBOR). These statutes establish protections for peace officers and firefighters subject to such investigations.

Whenever an employer is on notice of an employee concern that warrants an investigation, the next decision, invariably, is whether to perform the investigation in house or hire an outside investigator. In most situations, it is prudent, and even preferred, to use a qualified internal investigator.

The laws applicable to the operations of public agencies create opportunities to gather evidence and information that are unique to the public sector. These opportunities can help expedite and focus investigations by narrowing the scope of interview questioning, assisting with establishing timelines, and minimizing the delays associated with document requests or personnel file review.

The Morning Show is a ripped-from-the-headlines drama series about Mitch Kessler, a beloved TV anchor, who is fired for sexual misconduct during the MeToo movement. He’s basically Matt Lauer. As a workplace investigator, I was all in. How would the show portray our line of work? Inaccurately, it turns out!

Investigations should be conducted in a thorough, timely, and impartial manner. But what happens when an investigation is not conducted to these standards? As investigators, we frequently learn from the mistakes of other. The investigative news organization Mother Jones recently published an article on an investigation that had several serious missteps; ‘Independent’ Investigations Into Sexual Abuse Are Big Business. Can Survivors Really Trust Them?”

When public employees are facing serious discipline, they are generally entitled to a pre-disciplinary process known as a Skelly Hearing or simply, “Skelly,” during which the employee is permitted to respond to the proposed action.[1]  The Skelly is typically brief and does not include the robust components of a post-disciplinary appeal. Nonetheless, the Skelly provides an important opportunity for the employer to hear the employee’s perspective on the proposed discipline before imposing it. 

In a landmark decision, the U.S. Supreme Court expanded protections for whistleblowers under the Sarbanes-Oxley Act (“SOX”).  In February 2024, the Court decided Murray v. UBS Securities, LLC.  It held that a whistleblower does not need to prove that their employer acted with “retaliatory intent” in taking an adverse action against the employee.   

To admonish or not to admonish? That is the question - again.

At VM, we know workplace investigations. It’s what we do, every day. But we are always retained as external attorney investigators. Conducting an independent investigation as an external attorney investigator can be quite different from conducting an investigation as an internal human resources or compliance professional.

Consider this. It is an ordinary Monday. You receive notice of a complaint of sexual harassment. Maybe it is by or against a valuable, high-performing executive. Maybe it is by or against a one-month employee you are just getting to know. Either way, yours is a fascinating and challenging job. Your policy says the complaint must be investigated. But by who? Should you direct this investigation to an in-house investigator, or go to a third-party investigator?

It can be a refreshing treat when an investigator gets to jump into an investigation where some evidence has already been gathered, and they have at least some idea what the parties are going to say.  The ultimate fruit of the investigation, the findings, are almost always much easier to reach quickly when there are prior statements to rely upon. 

Workplace investigations are increasingly in the public eye.  Consider the Phoenix Suns, where an investigation sustained claims of race- and gender-based misconduct against the former owner, Robert Sarver, resulting in a one-year suspension and $10 million fine. Or Uber, which fired 20 employees after an investigator interviewed 200 people about workplace culture.

I recently came across the following anonymous quote “Learning from your mistakes makes you smart. Learning from the mistakes of others makes you wise.” So true. Nowadays, employers’ mistakes sometimes end up on the proverbial “front page” for all to see. While embarrassing and often damaging to the organization, we have the opportunity to learn from these public missteps. One recent example is the NBA’s investigation of Phoenix Suns owner, Robert Saver.