1. How Should Employers Investigate Harassment or Assault?
Under FEHA, employers must respond to harassment complaints with timely, impartial fact-finding and appropriate action. Address immediate safety concerns without prejudging either account.
Set the Scope of an Independent Review
A third-party workplace investigation protocol should define the allegations, interview plan, investigator qualifications, and conflicts.
- Identify allegations, witnesses, and the records each party offers.
- Limit report access; hiring an outside investigator does not automatically create privilege.
Give Both Parties a Meaningful Opportunity
Ask open-ended questions and let each person identify witnesses and address disputed facts.
- Preserve messages and contemporaneous notes.
- Review workplace harassment duties and appropriate corrective measures.
2. What Changes When Violence or Injury Is Reported?
Safety comes first when employees report threats, assaults, or serious injuries. Labor Code § 6401.9 requires covered employers to maintain a violence prevention plan and incident investigation procedures.
Secure the Scene and Record the Event
Separate urgent protection from later interviews and findings.
- Preserve footage and statements; exclude identifying information from the violent incident log.
- Check occupational safety duties under the applicable rules.
Check Reporting and Referral Obligations
Under 8 CCR § 342, covered deaths and serious injuries or illnesses must be reported promptly, generally within eight hours of actual or constructive knowledge.
- Check the serious-injury definition; qualifying exigencies may permit up to 24 hours.
- Coordinate lawful referrals while preserving records.
3. How Far May a Drug-Related Inquiry Go?
A positive test does not answer every workplace conduct question. Employers should review job duties, testing policies, disability protections, and the circumstances of suspected impairment.
Evaluate the Testing Basis
ADA and FEHA limit disability-related inquiries; illegal-drug testing follows different rules.
- Document observed conduct and the stated testing basis.
- Check collection procedures and chain of custody.
Protect Medical and Private Information
Medical confidentiality differs from Government Code § 12954 protections for certain off-duty cannabis use, which have exceptions.
- Store covered medical information separately from personnel files.
- Restrict access and assess reasonable accommodation when legally required.
4. What Evidence Matters in a Trade Secret Investigation?
Suspected data theft may involve the California Uniform Trade Secrets Act and federal Defend Trade Secrets Act. Preserve evidence without assuming access to personal devices.
Preserve Digital Evidence Lawfully
Access rights, device ownership, and company policies shape the forensic review.
- Preserve access logs, files, and authorized account records.
- Assess privacy and computer-access restrictions first.
Test the Alleged Misappropriation
A former employee's download history alone may not establish trade secret misappropriation.
- Identify the information and measures used to keep it secret.
- Review trade secret litigation issues before making accusations.
5. How Should a Discrimination Complaint Be Examined?
FEHA and applicable federal laws prohibit specified discrimination. Investigators should test the stated reasons for employment decisions against comparable records, rather than assume one disputed decision reveals a pattern.
Compare Treatment and Decision Records
Compare workers with similar duties, histories, and decision-makers before drawing conclusions.
- Review evaluations, policies, and past discipline.
- Check anti-discrimination obligations and protected characteristics.
Interview without Presuming Motive
Allow witnesses to describe events in their own words, including legitimate performance concerns.
- Record specific facts rather than labels or conclusions.
- Test inconsistent accounts against documents.
6. How Should Employers Review Suspected Financial Misconduct?
An unusual expense may reflect error or misconduct. Compare approvals and accounting records before deciding on discipline or a criminal referral.
Trace the Transaction History
Auditors can follow approvals and payments without assuming a missing receipt proves dishonesty.
- Match receipts, reimbursements, and approval trails.
- Document adjustments without altering source records.
Separate Findings from Recovery Decisions
Any repayment demand, deduction, or law-enforcement referral requires its own legal review.
- Calculate questioned amounts and identify evidence gaps.
- Assess wage protections and response to subpoenas.
7. How Should an Earlier Complaint Affect Retaliation Review?
Discipline soon after a complaint may raise concerns but does not, by itself, establish retaliation. FEHA, Labor Code § 1102.5, and applicable federal laws protect different activities.
Examine the Decision Timeline
Review what supervisors knew and why they took the challenged action.
- Compare complaint dates, warnings, and decision records.
- Identify any pre-existing performance concerns.
Check for Continuing Harm
If the first review missed witnesses or records, a focused follow-up may be necessary.
- Provide appropriate reporting channels and follow-up.
- Monitor for retaliatory conduct without promising absolute secrecy.
8. Frequently Asked Questions
Can an employer investigate an anonymous complaint?
Yes. Anonymous reports can justify fact-finding, although missing details may limit available evidence.
Must an outside investigator be an attorney?
No. External investigators generally must be licensed private investigators or attorneys acting as attorneys; privilege is not automatic.
Can an employee bring a representative to an interview?
Representation rights depend on the workplace, applicable labor law, and the interview's circumstances.
Can the employer promise complete confidentiality?
Not completely. Fair interviews and corrective action may require limited disclosure of relevant information.
9. Discuss an Investigation with SJKP
An overlooked witness or missing record can change how a workplace complaint is assessed. SJKP's attorneys can evaluate allegations, applicable duties, and the scope of an internal or independent investigation. Contact SJKP to discuss the procedural questions raised by your matter.
08 Oct, 2026
