An Investigation May Create Liability - Key laws to keep in mind when conducting an investigation:

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September 10, 2018
Author: Marc L. Jacuzzi, Esq.

A. Privacy - Article I, Section 1, California Constitution. Reviewing email, searching lockers or desks, asking personal questions, etc. may give rise to a claim that the employee’s right to privacy has been violated.

B. Fair Credit Reporting Act (FCRA)/California Consumer Rights Act (CCRA) - An exception from the notice and disclosure requirements exists in both federal and state law. FCRA (Section 603(x)) excepts certain communications for employee investigations. Similarly, CCRA (California Civil Code §1786.16(c)) excepts investigative consumer reports procured or caused to be prepared by the employer during investigation of, or suspicion of wrongdoing or misconduct.

CAUTION! If an adverse employment action results from the investigation, only a summary of the nature and substance of the investigative report is provided to the harasser.

C. National Labor Relationship Act (NLRA) – Union non-supervisory employees may have the right, if they raise the issue, to have a representative present during an interview, which could lead to that employee's being disciplined. If an employee is asked to attend a meeting with supervisors, and the employee has reason to believe the meeting may result in discipline or discharge, he or she has the right to have a co-worker present in the meeting. This should apply only to the alleged wrongdoers.

D. Fair Employment and Housing Act (FEHA) – inquires regarding protected class information, traits, orientations, etc. or indicating a protected class bias may create liability under the FEHA.

E. Title VII of the Civil Rights Act of 1964 – see FEHA.

F. Americans with Disabilities Act (ADA) – questions regarding an employee’s disability or perceived disability or assumptions regarding the reasons for the employee’s behavior (i.e. alcohol use, psychotic, unstable, etc.) may create liability under the ADA or FEHA.

G. Age Discrimination in Employment Act (ADEA) – inquires about an individual’s age or questions that may show an age bias may create liability under the ADEA.

H. Polygraphs/Lie Detectors – California: Labor Code Section 432.2 prohibits employers from demanding or requiring an employee or applicant to take a polygraph, lie detector or similar test. Under the Federal Polygraph Protection Act (PPA) (29 USC §2001) it shall be unlawful for any employer engaged in or affecting commerce or in the production of goods for commerce: 1) to directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test; 2) to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against any employee or prospective employee who refuses, declines, or fails to take or submit to any lie detector test or any employee or prospective employee on the basis of the results of any lie detector test; or 3) to retaliate against any employee or applicant who makes a complain under the PPA.

I. Secret audio recording – Penal Code Section 632 requires that both parties consent to any recording. California is a dual consent state.

J. False Imprisonment – where and how the investigation is conducted and what is said may give rise to a claim for false imprisonment.

K. Defamation/Slander – what is said about the accused or any witness both orally and in any written report may give rise to a claim of defamation and/or slander.

L. Intentional/negligent Infliction of Emotional Distress – how the questions are asked, what questions are asked and any corrective action may give rise to a claim of intentional/negligent infliction of emotional distress. And,

M. Health Insurance Portability and Accountability Act (HIPAA)/Confidentiality of Medical Records Act (CMRA)(Civil Code §56 et seq.) – disclosing medical or other information protected by HIPAA/CMRA may give rise to a claim that the employer violated HIPAA/CMRA, which may include civil/criminal penalties.

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