California regulations require an investigative process that provides all parties appropriate “due process.”2 Although this is not specifically defined by the regulations, due process generally means:

• Giving parties notice of what is being alleged against them;
• Providing a meaningful opportunity to fully respond to the allegations being made, including providing supporting witnesses and evidence;;
• Being thorough and complete;
• Performing a fair and unbiased investigation; and
• Acting in a timely manner.

• In addition, California regulations require that complaints be documented and tracked for reasonable progress.3

Your investigation must be conducted by qualified personnel. If you conduct in-house investigations, make sure the investigator is impartial and properly trained.

• If you hire outside organizations to conduct harassment investigations, ensure that the individual who conducts the investigation is a licensed attorney or a licensed private investigator in the state of California, as required under the California Business and Professions Code.

Licensed HR consultants are not legally able to conduct harassment investigations unless they are also a California attorney or a licensed private investigator.4 If the investigated case is ever challenged, you risk the investigation’s integrity and render any related decision vulnerable to attack. If your company uses outside resources to conduct harassment investigations, consult with legal counsel before proceeding.

Once the investigation is complete, make findings based upon the evidence and communicate the determination to the complainant and the respondent.

If you find that harassment occurred, provide a prompt and effective remedy to the complainant and take disciplinary action against the harasser. Ensure that no further harassment occurs. For more information, see Resolving Harassment Complaint. You must also prevent retaliation against the complainant or any other employee who participated in the investigation.

Base harassment investigations on guidelines that are provided in the following forms:

• Harassment Investigation Interview Guidelines
• Harassment Investigation Credibility Assessment Guidelines
• Harassment Investigation Checklist

Cooperating in a workplace investigation related to discrimination or harassment is a protected activity. For more information, see Retaliation. The state Fair Employment and Housing Act and federal Title VII prohibit discrimination, harassment or retaliation against an employee for participating in a workplace investigation.

On the other hand, employees also have a duty to cooperate and be truthful during a workplace investigation. Lying during an investigation or refusing to respond to specific questions can be grounds for discipline in some situations.5

For example, in McGrory v. Applied Signal Technology, Inc., a California court ruled that an at-will manager could be terminated for being uncooperative and deceptive during the company’s investigation of a discrimination claim against him. The employee in this case lied during an investigation of gender discrimination charges brought against him. He also refused to answer specific questions regarding why he had put the employee on a performance improvement plan. The employee was terminated after several warnings for non-cooperation and sued. The court noted that “[l]ying during an internal investigation is disruptive of workplace discipline.”6

An employee’s conduct does not become “uncooperative” or “disruptive” just because the employer does not like what the employee has to say or disagrees with the employee’s opinion. Employers should exercise caution and consult legal counsel before taking discipline for lying or uncooperative conduct during an investigation because of the potential for a retaliation claim.

Employers with collective bargaining agreements also need to be aware that there may be special rights afforded during the investigative process.

1. 2 CCR sec.11023 (b)