Seyfarth Synopsis: It is important for companies to investigate internal sexual harassment complaints and take prompt, appropriate corrective action. This post provides a six-step roadmap of best practices for handling sexual harassment complaints.

1.   Plan Ahead

  • Maintain compliant harassment policies, provide regular harassment training covering all required topics (Seyfarth can help), and communicate the procedure for reporting complaints.
  • Determine in advance who will oversee the process for handling complaints.
  • Have a crisis management team in place in advance (generally legal, human resources, IT, and communications or public relations).
  • Identify and train internal investigators so they know how to conduct an investigation.

2.    Initial Steps After Receiving A Complaint

  • Determine whether there is a need to conduct a formal investigation and, if so, the appropriate scope of the investigation.
  • Consider whether to place the accused on paid administrative leave pending the investigation. Some factors to consider include whether the accused poses a potential safety risk and whether having the accused in the workplace may intimidate witnesses or otherwise impede the investigation.
  • Take appropriate interim steps to prevent harassment and retaliation. For example, it may be appropriate to separate the accused and the complainant, instruct the accused not to communicate with the complainant, or to place an upcoming performance review on hold pending the conclusion of the investigation.
  • Determine who will conduct the investigation. Choose the investigator carefully, as that person may need to testify in any legal proceeding.
    • Investigators must be free from actual or apparent bias or conflict of interest. For example, an investigator should not investigate the conduct of the investigator’s superiors or friends.
    • Determine whether to retain an outside investigator. Consider whether the investigator needs a particular expertise.
    • Evaluate whether to retain a lawyer to conduct the investigation and whether the investigation will be covered by attorney-client or attorney work product privileges. The company can decide later whether to waive a privilege and rely on the investigation as part of a litigation defense.
  • Preserve evidence that may be relevant to the investigation. The evidence may include emails, texts, and internal messages. Involve IT as necessary.
  • Develop a public relations strategy if there may be potential media coverage or publicity.

3.    The Investigation Process

  • Conduct investigations promptly. If there was misconduct, it should be corrected as soon as possible.
  • Determine an investigation plan, but remain flexible. The number of witnesses interviewed and documents reviewed should be appropriate to the situation. Facilitate the investigator’s access to the relevant witnesses and the documents.
  • An investigation is a fact-finding mission. The investigator should approach the investigation with an open mind.
  • Consider the order in which witnesses are interviewed and what information to share with witnesses. Generally a best practice is to interview the complainant first and the accused last. Witnesses should be told that the company will maintain confidentiality consistent with the need to investigate.
  • Prepare notes contemporaneously or soon after the interviews. Document key quotes and any admissions made. Be thoughtful about your notes, as they may be discoverable if the matter results in litigation. Decide whether to have the witnesses submit or sign statements.

4.    Reporting the Findings

  • Determine whether a written report is necessary for all or parts of the investigation and, if so, what level of detail is appropriate for the report.

5.   Determine Who Will Decide and Take Appropriate Corrective Action

  • Generally the decision-makers should not be lawyers.
  • Corrective action may include, for example, discipline, coaching, further training, and other steps to prevent future harassment and retaliation.

6.    Close Outs And Other Follow Up After The Investigation

  • Inform employees involved with the investigation that the investigation has concluded and that the company has taken appropriate action. The company may not be able to share more information due to privacy concerns.
  • Instruct employees to report any further concerns through the appropriate complaint channels.
  • Remind them that company prohibits retaliation. Instruct employees to report any retaliation promptly.

Workplace Solutions: While is there is no “right way” to conduct an investigation, all investigations should (1) start with an investigation plan that may include interviewing the material witnesses and reviewing key documents, (2) be conducted as promptly as reasonably possible, (3) be conducted by a trained, impartial investigator, (4) be documented appropriately, (5) be followed by appropriate corrective action and steps to prevent harassment and retaliation, and (6) appropriately inform employees when the investigation has closed.

Edited By: Coby Turner

Seyfarth Synopsis: For certain employment-related contracts, California legislation effective January 1, 2019, will limit efforts to prevent disclosure of information relating to claims of unlawful acts and sexual harassment in the workplace. Read on for the devilish details.

California employers will soon have to heed a new crop of laws, born of the #MeToo movement, which will limit the terms permitted in employment-related contracts. What types of contracts, and what kinds of terms, you may ask? The answer, involving discussion of three separate bills adding three new California Code provisions, is a mouthful. But here goes.

  • Affected contracts include employment contracts, settlement agreements, and any other kind of contract that would try to prevent someone from testifying about alleged criminal conduct or sexual harassment.
  • The limitations include prohibiting waivers of the right to testify about alleged criminal conduct, including sexual harassment, as well as outlawing provisions that would prevent disclosure of information about sexual harassment and other illegal conduct in the workplace. The exact types of prohibitions depend on the kind of contract we are talking about.

The devil, of course, is in the details—and here the details are complex. Because prohibitions and permissions for certain kinds of contracts overlap somewhat, each case calls for careful analysis. The three bills in question, applying to agreements made on or after January 1, 2019, provide as follows:

  • AB 3109 (adding Civil Code § 1670.11) addresses contracts generally, and voids contractual provisions that would prevent a party from testifying about alleged criminal conduct or sexual harassment when the party has been compelled or requested to do so by lawful process.
  • SB 820 (adding Code of Civil Procedure § 1001) addresses agreements settling lawsuits or administrative complaints (as opposed to claims asserted in an internal complaint or demand letter), and voids contractual provisions that would prevent a party from disclosing “factual information” about sexual harassment or related retaliatory conduct.
  • SB 1300 (adding Gov’t Code § 12964.5) amends the FEHA to address agreements required as a condition of employment, and makes it an unlawful employment practice to require employees to release FEHA claims or to keep mum about “unlawful acts in the workplace,” unless the agreement is a negotiated resolution of a lawsuit, an agency complaint, or an internal complaint brought by an employee, in which case the employer can still get a release and require confidentiality concerning allegedly unlawful acts (to the extent the confidentiality provisions are not otherwise unlawful by means of the two new provisions discussed above).

Meanwhile, an amendment to the federal tax code, 26 U.S.C. §162(q), affects payments made or incurred with respect to sexual harassment settlements made after December 22, 2017. This federal development is beyond the scope of this post, but we mention it as a “heads up” item and refer you to our previous blog post here.

Contracts Generally

New Civil Code § 1670.11 is straightforward: the law frowns upon contracts by which employees agree not to testify about alleged criminal conduct or sexual harassment if they are officially requested to do so. This new statute seems a solution in search of a problem in that few employers have ever been so bold as to have employees agree to defy official requests to testify on these subject matters. But there it is.

Settlement Agreements

New Code of Civil Procedure § 1001, by contrast, can require significant changes in existing settlement practices. The law states that no provision in an agreement to settle a lawsuit or administrative complaint can prohibit the disclosure of “factual information” related to a claim filed in that proceeding if the information is “regarding” (1) sexual assault, (2) sexual harassment, (3) workplace harassment or discrimination based on sex, (4) failure to prevent sex discrimination or harassment in the workplace, or (5) retaliation for reporting sexual harassment or discrimination in the workplace.

But are some non-disclosure provisions still permitted in settlement agreements? Yes.

  • The “amount paid” to resolve any claim lawsuit or administrative complaint may still be kept confidential. The new California law is silent on whether non-monetary settlement terms may also be kept confidential.
  • If the claimant in the settled lawsuit or administrative complaint requests confidentiality, the parties may agree to prevent the disclosure of “all facts” regarding alleged sexual harassment or discrimination (including court filings) that would lead to the discovery of the claimant’s identity.

NOTE: This carve-out does not apply where a government agency or public official is a party. In those instances, agreements cannot contain provisions keeping the claimant’s identity confidential.

  • If an employee has merely filed an internal complaint or sent a demand letter regarding sexual harassment, discrimination, or retaliation—and has not filed a lawsuit or administrative charge—a settlement agreement may still contain standard confidentiality provisions.

Agreements for Raises, Bonuses, or New or Continued Employment

New Government Code § 12964.5—which expressly does not apply to negotiated settlement agreements—provides:

  • It is an unlawful employment practice to require employees—either as a condition of employment or in exchange for a raise or bonus—to sign any of the following provisions:
    • A statement that the employee does not have any FEHA claim against the employer or other covered entity.
    • A release of the right to pursue a FEHA claim or to notify a governmental entity of the claim.
    • Any agreement that prohibits disclosure of “information about unlawful acts in the workplace, including, but not limited to, sexual harassment.”
    • This new FEHA provision carries more bite than the other new provisions, because a contract unlawful under the new FEHA provision is not only unenforceable but also can enable an aggrieved employee to sue for damages and other relief.

Workplace solution: Taken together, these new California laws should prompt a thorough review of employee agreements, release agreements, severance agreements, settlement agreements, contracts for continued employment, and even some Employee Handbook provisions. Some language may need to be added to certain agreements. Meanwhile, where the employer is settling a case that does not allege sexual harassment or assault or discrimination or retaliation, broader confidentiality and non-disparagement clauses remain as permissible as ever.