Although many employees believe that a doctor’s note would automatically excuse their absences from work, a doctor’s note does not justify employees’ absences in all cases.   According to the California Chamber of Commerce, when an employee presents a doctor’s note following an absence, the employer should assess and determine whether the absence should be legally protected, such as under the disability accommodation or family leave laws, or if it just is an unprotected sick day, such as for a cold or medical appointment for a minor ailment.   As a California employer, you ..read more

Employers throughout California continuously realize the importance of conducting prompt, thorough, unbiased, and impartial workplace investigations when employee complaints related to discrimination, harassment, or retaliation arise. When one is received, employers and their legal counsel rely on impartial and unbiased workplace investigations to guarantee a work environment free from hostility to all employees. Furthermore, engaging an impartial third-party investigator avoids real or perceived bias and limits legal liability in litigation cases.     What does impartiality during ..read more

Investigators should consider a record retention policy for investigations, which will be useful in case of litigation, defend the integrity of the investigation, avoid spoliation claims, and maintain efficient and ethical practices that reduce costs.  Although investigators understand that they must retain—and potentially turn over—all documents and electronic information gathered and relied upon during an investigation, many investigators struggle with the retention of documents generated, such as witness interview notes and summaries, and investigation report drafts.  The followin ..read more

Employers often struggle to decide whether to handle employee complaints internally or look for a California-licensed external workplace investigator.   On the one hand, overburdening HR teams with too many issues might lead to an inability to respond promptly to serious employee complaints. On the other hand, employers may not recognize that the issue rises to the level of requiring a formal workplace investigation.  The following article helps employers understand when an employee complaint investigation is needed; the Association of Workplace Investigators (AWI) suggests inve ..read more

Implementing a well-established record retention policy and practice is essential for an investigator to adhere to ethical and professional responsibilities, avoid spoliation claims, and maintain efficient practices to reduce costs; this ensures compliance with applicable rules of professional responsibility.   In the event of litigation, an investigator’s retention policy will be critical. Therefore, establishing and following a record retention policy is necessary for investigators to be able to defend their practices for retaining and destroying investigation files.  This ar ..read more

California employment laws require employers to conduct a “prompt, impartial, and thorough” employee complaint investigation of allegations involving claims of harassment, discrimination, and retaliation, or misconduct that could violate the company’s policies.    Failing to conduct a workplace investigation after the employer is on notice of an employee complaint alleging the above stated claims may expose businesses to subsequent legal action. Different types of complaints require different initial responses. However, all employee complaints need to be taken seriously.  ..read more

Per California law, employers must take reasonable steps to prevent and correct discrimination, harassment, and retaliation in the workplace.   After an employee complaint is received, an investigation should be started and conducted promptly, as soon as it is feasible; a prompt investigation assists in stopping harassing behavior, helps ensure the preservation of evidence, and sends a message that the employer takes the complaint seriously.   However, some California employers face challenges during workplace investigations. In this article, we will explore some of those c ..read more

The California Office of Administrative Law recently approved the Civil Rights Council’s amendments to regulations in the Fair Employment and Housing Act (“FEHA”). The updated regulations govern how employers with five or more employees can use criminal history information when making employment decisions. The revised regulations were effective on October 1, 2023.   This article summarizes revised regulations California employers should be aware of.  New Definitions  The term “employer” now includes “any entity that evaluates the application’s conviction history on behal ..read more

For public employers, according to the California Public Employment Relations Board (PERB), confidentiality admonitions violate employee rights.  However, for private employers, according to the National Labor Relations Board (NLRB), employer policies regarding confidentiality during investigations will be presumptively lawful for the duration of an investigation.    The Association of Workplace Investigators (AWI) recommends that “all participants in an investigation, complainant, respondent, witnesses, should be cautioned both in writing and verbally in regard to their c ..read more

California law (Fair Employment and Housing Act or FEHA) prohibits discrimination, harassment, and retaliation in the workplace. The law requires employers to “take reasonable steps to prevent and correct wrongful (harassing, discriminatory, retaliatory) behavior in the workplace” (Cal. Govt. Code §12940(k)).   Therefore, California employers find themselves not only morally obligated but legally bound to maintain workplaces free from harassment, and neglecting this duty can result in severe legal consequences.  In 2016, California’s Fair Employment and Housing Council (FEHC) enacte ..read more