Finding the Facts - Disciplinary and Harassment Investigation

For purposes of this section, a private investigator is any person, firm, company, association, partnership, or corporation acting for the purpose of investigating, obtaining, and reporting to any employer, its agent, supervisor, or manager, information concerning the employer’s employees involving questions of integrity, honesty, breach of rules, or other standards of performance of job duties.

The Act specifically exempts “an attorney at law in performing his or her duties as an attorney at law.”

Under the plain language of the Act, it appears that outside consultants, other than attorneys, hired to investigate claims of discrimination, harassment or other misconduct need to be licensed private investigators. In fact, several Human Resources Professional Associations sponsored and lobbied to pass legislation which would allow Human Resources consultants to conduct investigations without a PI license. The legislation has failed to pass.

B EGINNING THE I NVESTIGATION

Section 5

A. P RELIMINARY I SSUES TO C ONSIDER P RIOR TO S TARTING THE I NVESTIGATION In some circumstances, interim steps may need to be taken before the investigation is completed. In situations involving harassment or discrimination complaints, the employer should assess whether interim corrective action should be taken so that the risks of continuing harm and liability are minimized. In one case where the employer ultimately terminated the employee but delayed the investigation and resolution of the matter, the Court upheld a verdict against an employer for intentionally inflicting emotional distress. 73 Failure to take immediate action, especially where such action can be easily taken, may create additional liability.

Districts should not abdicate their duty to conduct a full and complete investigation to law enforcement authorities, even when the employee’s misconduct involves criminal activity or triggers those provisions of the Education Code that provide for the immediate placement of an employee on either a mandatory or optional leave of absence. 74

LCW Practice Advisor

Interim steps may include temporary transfer, placing the alleged wrongdoer on administrative leave, temporarily changing office locations, assigning an interim supervisor, or other temporary response designed to respond to the alleged offending situation. In deciding which interim measures to adopt, consider the option that has the least negative impact on the complainant. In

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