California Workplace Investigations

Independent Workplace Investigations for California Employers

A California employer that receives a complaint of harassment, discrimination, retaliation, workplace violence, or serious misconduct by a manager or executive needs an investigator who is independent of the reporting relationships involved and whose findings will hold up if the matter is later challenged in litigation, arbitration, or before a regulator. Rivera Carbone PC conducts independent workplace investigations for California employers, in English and Spanish, and advises on how an investigation should be structured before it begins so the company understands, going in, whether the process and its findings will be privileged. The stakes are concrete: California’s FEHA regulations require employers to conduct a reasonably prompt, thorough, and fair investigation of harassment and discrimination complaints, and the quality of that investigation is often what determines whether the company can later defend a lawsuit, arbitration demand, or Civil Rights Department charge.

Who This Service Is For

This service is for HR professionals, general counsel, executives, and business owners who need an investigator with no reporting relationship to anyone involved in the complaint. That independence matters most in a specific set of situations: the complaint names a senior manager or executive, HR itself is the subject of the complaint or has a personal connection to a party, the complainant has raised prior complaints, the allegations are serious enough that litigation or a regulatory charge is likely, or the workforce includes Spanish-speaking witnesses whose statements need to be taken directly rather than through an interpreter.

The Problems We Help Address

We investigate a range of workplace complaints for California employers, including:

Sexual harassment and hostile work environment complaints
Discrimination complaints on protected characteristics under the Fair Employment and Housing Act
Retaliation complaints following a protected complaint, leave request, or whistleblower report
Complaints against a senior manager or executive, where internal HR has a real or perceived conflict
Threats or acts of workplace violence, including matters that intersect with a company’s workplace violence prevention plan under Labor Code section 6401.9 (SB 553)
Whistleblower and internal compliance complaints
Complaints requiring witness interviews in Spanish as well as English
Complaints where the company anticipates a lawsuit, arbitration demand, or a Civil Rights Department or EEOC charge and needs the investigation to be defensible if produced later

How We Approach an Investigation

We begin with a scoping conversation to define the allegations, identify the individuals involved, and decide, before any interviews take place, whether the investigation should be structured to preserve attorney-client privilege and what that requires. From there, we preserve relevant documents, texts, emails, and other evidence; plan and conduct witness interviews in English or Spanish; assess credibility where accounts conflict; and reach factual findings supported by the evidence gathered. We advise on interim measures, such as administrative leave or reporting-line changes, to reduce the risk of retaliation while the investigation is pending. At the close of the investigation, we deliver findings in the form the client has chosen at the outset, whether that is a full written report or a more limited summary, and we coordinate with the company’s employment counsel on remedial action and any related separation or settlement terms.

Key Legal and Business Risks

An inadequate or delayed investigation is itself a source of liability, separate from whatever the underlying complaint alleges. Several California-specific issues shape how an investigation should be run:

The investigation itself is often the defense. California employers rely on the affirmative defense recognized in Faragher and Ellerth, which generally requires showing the company exercised reasonable care by investigating promptly and taking appropriate corrective action. A thin or delayed investigation weakens that defense regardless of how the underlying facts come out.
Privilege has to be decided in advance, not claimed afterward. An attorney-conducted investigation can be privileged, but the privilege narrows if the company later relies on the investigation’s adequacy as a defense, since that reliance can waive protection over the underlying findings (Kaiser Foundation Hospitals v. Superior Court). If the company wants to preserve the option of relying on the investigation later, the engagement needs to be structured for that from day one.
Retaliation exposure runs through the entire process, not just the outcome. Interim measures, scheduling decisions, and how the complainant and witnesses are treated during the investigation are all potential retaliation evidence if the case is later litigated.
AB 933 expanded defamation privilege for good-faith complainants and witnesses reporting sexual assault, harassment, discrimination, or retaliation, which changes the practical risk calculus around candid witness statements and how findings are communicated internally.
The Silenced No More Act (SB 331) limits confidentiality and non-disparagement terms in any settlement or separation agreement tied to harassment or discrimination allegations, which affects how a matter can be resolved after the investigation concludes.
FEHA’s statute of limitations runs three years from the underlying conduct under Government Code section 12960, so an investigation sometimes needs to look further back than the immediate incident to assess the full pattern at issue.

Representative Services

Complaint intake, scoping, and investigation planning
Structuring the engagement to preserve attorney-client privilege where that is the client’s objective
Preservation of documents, communications, and other evidence relevant to the complaint
Witness interviews conducted in English and Spanish
Credibility assessments and factual findings based on the evidence gathered
Advice on interim measures, including administrative leave and reporting-line changes, to reduce retaliation risk during the investigation
Written investigative reports suitable for use in later legal proceedings when the client intends to rely on them
Coordination with the company’s employment counsel on remedial measures and related separation or settlement agreements
Investigation of workplace violence threats and incidents connected to a company’s SB 553 workplace violence prevention plan

Why Clients Engage Rivera Carbone PC

Javier Rivera-Carbone has practiced law for more than 30 years and conducts workplace investigations in English and Spanish, which matters in disputes that turn on witness accounts of what was actually said and done. The firm has also defended employers in wage and hour, retaliation, discrimination, and wrongful termination matters in California courts and arbitration, so an investigation we conduct is informed by how these matters are actually litigated afterward. Javier is also an Association of Workplace Investigators Certificate Holder (AWI-CH).

Frequently Asked Questions

When does a complaint require an outside investigator rather than internal HR?

An outside investigator is appropriate whenever internal HR has a real or perceived conflict, such as a complaint against a senior executive, a complaint about HR itself, a complaint by a close friend of the complainant, or allegations serious enough that the handling of the complaint will likely be scrutinized later in litigation or arbitration. An independent, outside investigator also strengthens the company’s position that the process was fair if the outcome is ever challenged.

Does having an attorney conduct the investigation make it privileged?

Not automatically. An attorney-conducted investigation can be privileged if structured from the outset as legal advice to the company, but that privilege narrows significantly if the company later relies on the investigation’s adequacy as a defense, since that reliance can waive protection over the underlying findings. Whether privilege is achievable, and worth pursuing, is a decision to make before the investigation begins, not after it concludes.

What interim steps can a company take while an investigation is pending?

Employers can place an accused employee on paid administrative leave, adjust reporting lines, or limit contact between the complainant and the accused while the investigation proceeds, provided the measures are not themselves punitive toward the complainant. California law prohibits retaliation against the complainant and witnesses during and after the process, so any adverse action taken toward them during this period should be independently justified and documented.

Do investigation findings have to be shared with the complainant or the accused?

There is no single rule requiring disclosure of a full written report, but California’s FEHA regulations require that the complainant and the accused each be told, at minimum, that the investigation concluded and what action, if any, resulted. Employers should decide before the investigation begins how much detail they intend to share and whether the complete report will be treated as attorney work product.

Can a company use the investigation to defend itself later in a lawsuit?

Often, yes, since a prompt, thorough, and fair investigation is central to the affirmative defenses available to California employers, including the affirmative defense recognized in Faragher and Ellerth. Relying on the investigation this way typically means producing it in discovery, so the report should be written from the start with the assumption that a judge, arbitrator, or opposing counsel may eventually read it.

Talk to Us Before You Start an Investigation

The decisions that determine whether an investigation is privileged, defensible, and fair are made at the outset, before the first witness is interviewed. Rivera Carbone PC conducts independent workplace investigations for California employers, in English and Spanish, and advises on how to structure an investigation before it begins. Contact us to discuss a pending complaint.