Why the Choice of Investigator Is Itself a Legal Decision in California

When a serious complaint lands, the first instinct is to ask who is available. That is the wrong first question. In California the choice of investigator sets the terms on which the resulting file can later be defended, and three provisions govern that choice. None of them requires an outside investigator. Each of them rewards deciding early, and for reasons you can explain.

The Standard the Regulations Set

The Fair Employment and Housing Act regulations require an employer’s harassment, discrimination, and retaliation prevention policy to provide for impartial and timely investigations by qualified personnel. The regulation is short, and every word in it does work. Qualified speaks to training and experience, not job title. Impartial is judged by a later reviewer looking at the reporting lines and relationships around the investigator, not by the investigator’s own view of their fairness. Timely means promptly begun and steadily pursued, not rushed to a conclusion.

An internal investigator can meet all three requirements, and frequently does. The difficulty arises when the person complained about supervises, evaluates, or works closely with the people who would investigate. At that point impartiality is a fact the employer can no longer establish, however carefully the work is done, and the regulation is pointing you outside.

Licensing and the Attorney Exemption

California’s Private Investigator Act generally requires a person who conducts investigations for compensation into an employee’s conduct to hold a private investigator’s license. The Act exempts an attorney at law in performing the attorney’s duties as an attorney at law. The practical consequence is that an employer has two lawful routes to an outside investigator: a licensed investigator, or an attorney acting as one. Retaining an unlicensed non-attorney is a third route, and it hands the other side an argument about the legitimacy of the whole process before anyone reaches the merits.

Licensing is a floor, not a qualification. The regulation’s word is qualified, and a license or a bar card is evidence of neither training in interviewing nor judgment in weighing credibility. But the floor matters, and it should be checked before engagement rather than discovered in a deposition.

Privilege Is a Decision, Not a Side Effect

The third provision is not a statute but a line of cases. In City of Petaluma v. Superior Court, the Court of Appeal held that an outside attorney’s factual investigation of a harassment complaint was protected by the attorney-client privilege and the work-product doctrine even though her engagement letter said she would not advise the city on what action to take. The court applied the dominant-purpose test: an attorney who uses legal training to identify the relevant facts, gather and weigh the evidence, and reach conclusions is providing legal services, whether or not she gives advice.

That holding gives an employer a choice it does not have with a non-attorney investigator. The choice comes with a consequence, decided in Wellpoint Health Networks, Inc. v. Superior Court: an employer that later defends a claim by relying on the adequacy of its investigation may put the investigation at issue and waive the privilege over it. As the Court of Appeal explained, “If a defendant employer hopes to prevail by showing that it investigated an employee’s complaint and took action appropriate to the findings of the investigation, then it will have put the adequacy of the investigation directly at issue, and cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy.”

The waiver analysis is fact-specific, however. In City of Petaluma, the court held that asserting an avoidable-consequences defense did not automatically waive privilege over a post-employment investigation, because the employee could not have taken advantage of any corrective measures adopted after leaving employment. And in Kaiser Foundation Hospitals v. Superior Court, the court clarified that Wellpoint did not establish a blanket waiver rule: when an employer produces the substance of its non-attorney investigation but seeks to protect specific communications between investigators and counsel, the privilege may be preserved.

Whether to make that trade is the employer’s call, made with counsel, and it is far better made at the outset than after the report exists. Retaining an attorney keeps the option open; it does not oblige you to use it.

What This Means in the First 48 Hours

Three questions, asked before anyone is interviewed, settle most of this.

First: Who does the natural internal investigator report to, and how close are they to the people involved? If the answer is uncomfortable, the regulation has answered the question for you.

Second: If we go outside, is the person licensed or an attorney, and do they have training and experience in workplace investigations specifically rather than in litigation or human resources generally? Licensing and bar admission are minimum requirements; they are not substitutes for substantive qualifications.

Third: Do we want the option of privilege, understanding what relying on the investigation later could cost? This is not a technical question. It is a strategic one, and it should be resolved in consultation with counsel before the investigator is retained.

Write the answers down. The memorandum recording why an investigator was chosen is often the first document a reviewer reads, and it is the one an employer is least likely to have.

None of this makes an investigation good. Scope, evidence, fair interviewing, sound credibility analysis, and a report that shows its reasoning do that. But those qualities are tested after the fact by people whose job is to find the gaps, and the decision that most often determines whether they find one was made before the first interview: who was chosen to conduct it, and why.

John A. Swarbrick is a California attorney and professional neutral who conducts workplace investigations and serves as a labor arbitrator and factfinder. This article is general information, not legal advice; employers should consult their own counsel on the matters discussed.