SCHROEDER
WORKPLACE INVESTIGATIONS, PC
A law firm engaged exclusively in the conduct of workplace investigations.
WORKPLACE INVESTIGATIONS
Objective. Independent. Fair.
THE DUTY TO INVESTIGATE
Every employee has the basic right to be treated fairly and to feel safe in the workplace.
Employers and employees have a shared interest in a respectful and inclusive workplace.
When employers become aware that harassing, discriminatory, or other potentially unlawful behavior may be occurring,
they have both a legal duty and a moral obligation to respond promptly.
The cost of ignoring workplace conflict is not limited to potential legal liability. A toxic workplace culture also can cause
high employee turnover, breakdown of trust in leadership, lost productivity, and damage to the reputation of the organization.
State and federal laws require employers to promptly investigate workplace complaints of harassment, discrimination, and retaliation. Investigations also are called for in response to whistleblower complaints and alleged breaches of ethics and compliance responsibilities.
If you are wondering whether you need to investigate, ask yourself whether the allegations, if true,
would constitute a violation of a state or federal law, an ethical obligation, or an important company policy.
If the answer is yes, then an investigation is necessary.
IS AN INVESTIGATION NECESSARY EVEN IF THERE HAS BEEN NO FORMAL COMPLAINT, OR IF THE COMPLAINT IS ANONYMOUS?
Sometimes, no one is willing to come forward,
and employers have only gossip and rumors, or an anonymous report, to signal possible conflict in the workplace.
Employers have a duty to take all reasonable steps necessary to prevent discrimination and harassment.
The United States Supreme Court has held that this duty arises when an employer knew or “should have known” about the conduct and failed to act to stop it. Burlington Industries v. Ellerth, 118 S.Ct. 2257, 2267 (1998). Thus, even in the absence of a formal complaint, gossip and rumors – or an anonymous complaint – may be enough to put an employer on notice of misconduct and trigger a duty to investigate.
THE PURPOSE OF A WORKPLACE INVESTIGATION
Workplace investigations provide the facts employers need to make rational and informed employment decisions.
A properly-conducted investigation is a tangible way for an employer to demonstrate that it takes concerns seriously and is committed to equitable treatment. Even when no violation of a law or policy is found, employees feel respected and heard,
and management can gain valuable insights into problem areas.
And if an employee later brings a legal action, an employer may be able to rely on its prompt and thorough investigation as a defense,
as well as to demonstrate its commitment to preventing and responding to discrimination and harassment.
Ultimately, an investigation is a tool for understanding – and correcting – workplace dysfunction.
YOU ONLY HAVE ONE CHANCE TO GET THIS RIGHT
Finding the truth in workplace investigations is often challenging and can have enormous consequences for the people involved.
A poorly-conducted investigation can do more harm than good: it can damage trust in the organization, cause rancor among the participants, and potentially give rise to liability.
Government agencies, judges, and juries take the promptness, thoroughness, and impartiality of a workplace investigation seriously.
You should too.
Choosing the right investigator is a critical first step.
CHOOSING THE RIGHT INVESTIGATOR
Workplace investigations are stressful for everyone involved. The complainant may be scared to come forward. They may fear retaliation – that they will lose their job, damage relationships with colleagues, or be seen as a troublemaker. The person accused may fear that they won’t be treated fairly. They may fear harm to their reputation, career, and relationships with colleagues and family, whether or not the allegations are substantiated. Witnesses may not want to get involved. They may feel they’re being “put in the middle” and fear retaliation.
The investigator must have not only sufficient experience and training, but also patience and the ability to establish rapport.
If employees perceive the investigation process to be fair and impartial, they will be more comfortable speaking openly and raising sensitive issues. To engender trust in the process, the investigator must be actually neutral; she must not have a stake in the outcome.
Equally important, she must appear to the participants to be neutral.
Often, experienced and well-trained employees, including HR professionals and in-house legal staff, are the right choice to conduct a workplace investigation. They have the advantage of knowing the organization’s policies, past practices, and culture.
In some instances, retaining an outside investigator may be the wiser choice.
Not all employers have an in-house employee qualified to handle a particular case. Even when experienced staff are available, a personal friendship or long-standing working relationship with one of the participants – or some other conflict of interest – could lead to the appearance of bias. An internal investigator may feel pressure – actual or perceived – if the complaint is by or against a person with more authority in the organization. Or the complaint may involve a sensitive department like HR or the legal department, or have the potential to attract attention from the media or other external stakeholders.
Because an external investigator has no ties to the company and no pre-existing relationships with the participants or pre-conceived notions about them, her objective analysis lends credibility both to the process and to the findings, no matter the results.
If there is a likelihood of litigation, the investigator may be a key witness, and the investigation report a key exhibit.
The quality of the report and the ability of the investigator to explain her investigation process and findings in a deposition or to a jury may be critical down the road.
STATE LICENSING REQUIREMENTS FOR EXTERNAL INVESTIGATORS
Before hiring an external investigator, employers need to be familiar with the laws in their states regulating workplace investigations and should consult with legal counsel to ensure that they are complying with applicable laws.
Statutes in both Nevada and California – and many other states – restrict who can conduct workplace investigations. The statutes permit employees of organizations to conduct investigations, but restrict non-employee investigators to certain licensed professionals, including licensed private investigators and attorneys licensed in the state “performing his or her duties” as an attorney.
See NRS 648.012(1)(a) and 648.018(8); Cal. Bus. & Prof. Code sections 7512-7573.
Although many HR professionals who provide outside consulting services to employers may have the skills and experience to conduct workplace investigations, many do not hold the licensure required by state law to do so.
An investigation conducted in violation of state licensing statutes could cause problems down the road – both for the company and for the investigator. It is therefore imperative that employers choose a qualified investigator in order to ensure the legality of the investigation.
WHY CHOOSE SCHROEDER WORKPLACE INVESTIGATIONS?
My investigations do more than satisfy legal requirements. I have the expertise and the experience to conduct respectful but probing witness interviews, methodically analyze the evidence, dispassionately weigh credibility, and reach sound conclusions. I provide a thorough and balanced report of my findings – whether orally or in a written report – that you can rely upon to make the decisions necessary for the
health and productivity of your organization.
I offer the best of both worlds – big law firm experience and in-house experience at the C-Suite level, combining over 25 years of legal experience with first-hand knowledge of business needs and employee-employer relations. I have served clients across industries, including health care, defense and national security, higher education, manufacturing, and retail, as well as non-profits.
ABOUT
Debra Schroeder founded Schroeder Workplace Investigations PC in Reno in 2019. She has been conducting workplace investigations since the 1990s. She honed her employment law expertise in large law firms, including Littler Mendelson in Los Angeles, and as in-house counsel in manufacturing, health care, non-profits, and government contractors. She served as General Counsel, Ethics and Compliance Officer, and Corporate Secretary at
The RAND Corporation in Santa Monica.
Debra limits her law practice exclusively to the prompt and thorough conduct of independent, fair, and neutral workplace investigations. She has investigated EEO allegations including harassment, discrimination, and retaliation, as well as ethics matters. She received both her undergraduate and law degrees at Indiana University, Bloomington. She is licensed to practice in Nevada, California, and Indiana.
Debra served for six years on the Board of Directors of the Association of Workplace Investigators and passed that organization’s rigorous series of examinations to earn its Certificate Holder designation. She completed investigator certificate training provided by the United States Equal Employment Opportunity Commission for conducting
federal investigations.