In California, conducting workplace investigations is a critical component of maintaining a safe and legally compliant work environment. A poorly executed investigation can expose organizations to costly litigation and reputational damage. In this article, we provide you with helpful steps for conducting workplace investigations that comply with the Fair Employment and Housing Act (FEHA) and withstand audits, arbitration, or litigation.
What Does FEHA Require in California?
Under the FEHA, employers are required to investigate any employee complaint of harassment, discrimination, or retaliation. The law requires that investigations be:
- Prompt – Initiated without unreasonable delay.
- Thorough – All relevant facts and evidence must be gathered.
- Objective – Free from bias, conflicts of interest, or pre-judgment.
Legal Risks for Public and Private Employers
Public entities face an even higher standard for conducting workplace investigations due to constitutional due process requirements. A Vanderbilt Law Review study found that over 50% of disciplinary actions in law enforcement were overturned because of investigative flaws.
Best Practices for Effective Workplace Investigations
✅Consider all relevant witnesses and evidence.
Start by identifying and reviewing every piece of information that could influence the outcome. This includes witness accounts, internal communications, digital records, physical documents, and any contextual data. A complete picture requires looking beyond the obvious and considering both direct and circumstantial evidence.
❌Avoid the mistake of investigating only one side or failing to follow up on leads that could disprove or support a claim. A narrow or incomplete inquiry may appear biased or negligent.
✅Conduct a credibility assessment for all witnesses.
Not all testimony carries the same weight. Evaluate each witness by examining the consistency of their statements, their demeanor, potential biases, and whether their account aligns with independent evidence. Patterns of behavior and prior conduct can also provide important context when assessing reliability.
❌Credibility must be assessed objectively, regardless of job title or perceived authority. Favoring management over employees—or vice versa—can compromise the integrity of the process.
✅Analyze the evidence, explaining the reasons for the findings and justification, citations supporting all information for the conclusions, logical reasoning, and addressing insufficient counter-evidence for the case.
Every conclusion should be supported by a logical explanation. Detail how the evidence led to the findings, referencing relevant policies, timelines, and corroborating facts. If conflicting information exists, explain how it was weighed and why certain elements were given more credibility than others.
❌Stating conclusions without explaining how they were reached leaves your report vulnerable to legal challenge. Every finding should show a logical connection between the evidence and the conclusion.
✅Burden of proof, demonstrating the evidence needed to establish the case, considering the available evidence and weighing it to determine whether the conduct occurred or not.
Carefully weigh the available facts to determine whether this threshold has been met, and document the rationale clearly. Use the “preponderance of the evidence” standard—i.e., whether the alleged conduct more likely than not occurred.
❌Workplace investigations are not criminal trials. Requiring an unreasonably high standard of proof could result in inaction and legal exposure.
Hire an External Workplace Investigator
While some internal HR teams are trained to conduct investigations, many are not equipped to handle high-risk or complex matters. Employers are advised to engage licensed investigators with expertise in California employment law, avoid real or perceived conflicts of interest, especially when internal staff have prior relationships with involved parties, and demonstrate independence and professionalism by using third-party investigators in sensitive or high-stakes cases.
A flawed workplace investigation can cost more than a lawsuit—it can erode internal trust and damage an organization’s external reputation. Investing in strong investigative processes is a risk mitigation strategy and a sign of commitment to a fair workplace.
Why Choose California Labor Solutions?
California Labor Solutions (CLS) is one of the only HR firms licensed* to conduct workplace investigations in California. We serve private businesses and public-sector organizations throughout the state. Our approach ensures impartial, well-documented, and legally sound investigations. We have conducted hundreds of objective and unbiased workplace investigations to identify issues and risks within organizations, as well as to address employee complaints related to allegations of discrimination, harassment, retaliation, workplace violence, and various types of employee misconduct, all with the utmost quality, detail, and efficiency.
*California Private Investigator License Number 26311.
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Disclaimer
Please note that the updates, advisories, and regulations we receive from the promulgating agency often contain ambiguities and/or are often amended, modified, or updated. This material/article/email does not contain any legal advice. The information and opinions expressed herein are based on our reasonable interpretation of the issuing agency’s publication at the time the opinion is expressed and is, therefore, subject to change based on further developments. The effect of the opinions expressed may be different based on your particular circumstances, and it is recommended that you not rely upon these general opinions prior to obtaining a consultation with your legal and/or financial advisors.