Frequently, workplace events give rise to a workplace investigation.  The investigation may be conducted by an in-house HR person or a professional outside investigator.  Workplace investigations play a central role in determining whether to discipline or terminate an employee and can have legal consequences for both employees and employers.  An action for defamation can potentially result if false statements are made to the employee’s detriment.  Although an employer may argue that statements made in the course of a workplace investigation are protected, that privilege would usually be conditional at best, meaning it would be lost if the publication was motivated by malice.  Deaile v. General Telephone Company of California (1974) 40 Cal.App.3d 841, 847.  

Malice sufficient to defeat the conditional privilege has been found where there has been a failure to investigate the statement(s) or conduct at issue thoroughly and verify the facts stated.  Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 423; Widener v. PG&E (1977) 75 Cal.App.3d 415, 434-35. It has also been found where there has been purposeful avoidance of the truth or deliberate decision not to investigate facts.  Antonovich v. Sup.Ct. (Schwellenbach) (1991) 234 Cal.App.3d 1041, 1048.  Where the substance of the defamatory statements pose a substantial danger to the defamed party’s reputation, there is an even greater obligation to investigate the facts thoroughly and fairly.  Failure to do so constitutes reckless disregard for the truth.  Widener, supra, at 434.  This includes the failure to interview obvious witnesses who could have confirmed or disproved the allegations.  Khawar v. Globe Intern., Inc. (1998) 19 Cal.4th 254, 276.

 “Although failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category . . . Inaction, i.e., failure to investigate, which was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the subject] charges will support a finding of actual malice.”  Antonovich v. Superior Court, 234 Cal.App.3d 1041, 1048 (1991) (internal citations omitted).  

While there is no set way to conduct an appropriate investigation, a proper investigation should meet the EEOC’s guidelines in conducting investigations.  The EEOC’s enforcement guidance is available on their website and can be viewed here:  http://www.eeoc.gov/policy/docs/harassment.html  In addition, the Association of Workplace Investigators (“AWI”) publication, Guiding Principles for Investigators Conducting Impartial Workplace Investigations, lays out eleven principles that reflect best practices for workplace investigations: http://www.aowi.org/assets/documents/guiding%20principles.pdf