Labor Relations in the United States

Investigation of Accusations of wrongdoing in the Workplace

By Louis C. Klein is of counsel in the Los Angeles office of Meyers Nave. He represents employers and management in state and federal courts.

Employers who promptly and earnestly investigate accusations of wrongdoing in the workplace fare much better in court than those who don’t. An employer’s duty to prevent harassment and discrimination is both affirmative and mandatory (Cal. Gov. Code § 12940(j),(1) & (k)), and the failure to investigate may amount to employer ratification of the underlying conduct (Swenson v. Potter, 271 F.3d 1184, 1191 – 1192 (9th Cir. 2001)), triggering a distinct cause of action. (Cal. Gov. Code § 12940(k); Trujillo v. North County Transit Dist., 63 Cal. App. 4th 280, 286 (1998).) Indeed, “[p]rompt investigation … is a necessary step by which an employer meets its obligation to ensure a discrimination-free work environment.” (Northrup Grumman Corp. v. WCAB, 103 Cal. App. 4th 1021, 1035 (2002).)

The Tipping Point

What triggers the duty to investigate? The most obvious marker is when an employee complains about wrongdoing. Whether written or verbal, employee complaints must be taken seriously. Even though the matter may involve seemingly innocuous events–such as employee venting, gossip, anonymous complaints, or casual remarks-be careful. If left uncorrected, today’s gossip can become tomorrow’s lawsuit. Once the employer knows or should know about inappropriate behavior, it has a duty to take immediate and appropriate corrective action (Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994)).

The keys are active listening, measured observation, and consistent follow-through. Active listening is the ability to focus in on what an employee is saying, not only with words, but also with body language and words that may be left unsaid. The ability to observe the workplace, understand its culture, and see potential stress points is also a vital part of assessing complaints. However, an employer must also be consistent in following through. Failure to investigate in a consistent, unbiased manner can be as harmful as the discrimination or harassment being investigated.

Watch for Indicators

The duty to investigate does not depend on receiving a written complaint. It stems from any source of information that puts the employer on notice of possible inappropriate conduct (Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986)). Important sources include other employees, supervisors, administrative personnel, vendors, or even the public at large. Once a supervisor obtains knowledge of possible inappropriate or illegal conduct, an employer’s duty to prevent harassment and discrimination is triggered, including the duty to conduct a prompt investigation

As news coverage of employment cases has proliferated, so too has employees’ familiarity with legalese. Employers engaged in active listening should be alert to the manner in which employees refer to “harassment,” “favoritism” and “unfair treatment,” and to any expressions of concern or discomfort due to “inappropriate,” “condescending,” or “patronizing” conduct.

Note that buzz words alone may not trigger the duty to investigate. Even so, an employer should always try to dig deeper when these words surface, because often they indicate that something is not right within the workplace.
The duty to investigate may even arise when an employee expresses vague feelings of distress, or the employer becomes aware of erratic nonverbal conduct, such as an employee who engages in prolonged staring at another employee. Typically, this conduct does not create a duty to investigate unless other factors are known to the employer, such as prior harassment in the workplace. In one case, an employee’s staring was potentially actionable retaliation for a prior harassment claim (Birschtein v. New United Motor Manufacturing, Inc., 92 Cal. App. 4th 994 (2001)).

Be Reasonable

Keep in mind that not every situation calls for a formal investigation. Employers should act reasonably in light of the surrounding circumstances. Thus, the law requires an employer to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Cal. Gov. Code, § 12940(k); Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128, 1146, 1174 (1998).)

So how can an employer distinguish between a non-actionable dispute over workplace civility and a genuine claim of illegal discrimination or harassment? In many cases, it comes down to a judgment call, and the best advice is: When in doubt, investigate.

An employer who fails to investigate potential wrongdoing risks losing the opportunity to safeguard the workplace-a universal goal and responsibility. The objective should be to stop inappropriate behavior early, before it escalates into a real, and potentially costly, legal claim.

Main Topics of Labor Law

This entry in the American Encyclopedia has been organized to address the following topics, among others:

• Labor Law : Benefits
• Labor Law : Discrimination
• Labor Law : Drug Testing
• Labor Law : Employee’s Rights/EEOC
• Labor Law : Family and Medical Leave Act (FMLA)
• Labor Law : Independent Contractors/Freelancers
• Labor Law : Labor Unions/Strikes
• Labor Law : Occupational Health and Safety
• Labor Law : Privacy
• Labor Law : Sexual Harassment
• Labor Law : Unemployment Insurance/Compensation
• Labor Law : Wage and Hour Laws
• Labor Law : Whistleblowers
• Labor Law : Worker’s Compensation

Finding the law: Labor Relations in the U.S. Code

A collection of general and permanent laws relating to labor relations, passed by the United States Congress, are organized by subject matter arrangements in the United States Code (U.S.C.; this label examines labor relations topics), to make them easy to use (usually, organized by legal areas into Titles, Chapters and Sections). The platform provides introductory material to the U.S. Code, and cross references to case law. View the U.S. Code’s table of contents here.

Resources

See Also

• National Labor Relations Act Provisions
• National Labor Relations Board
• Labor-Management Relations Act, 1947
• Sexual Harassment
• Fair Labor Standards Act: Independent Contractors
• Retaliation
• List of top 10 most-cited legal articles in labor and employment law
• National Labor Relations Board V Jones And Laughlin Steel Co
• Employee Handbook
• Federal Labor Relations Authority

Further Reading

• Information about Labor Relations in the Gale Encyclopedia of American Law.