An independent and impartial investigation that your organization can stand behind

When an outside investigator is the right call

Most complaints can and should be handled internally. A smaller set carry features that make internal handling difficult to defend later, however capable the HR team. I am most often retained where the complaint concerns an executive, elected official, board member or other person with authority over those who would otherwise investigate; where accounts conflict and credibility will decide the matter; where the timing of an adverse action raises retaliation questions; where the matter is already in the hands of lawyers or likely to be; or where a collective bargaining agreement, the Public Safety Officers Procedural Bill of Rights, or campus policy imposes procedural requirements that must be met exactly.

How I conduct investigations

1. Conflict check and engagement

   I confirm that I have no relationship with the parties, agree the engagement terms with the employer or its counsel, and address at the outset whether the investigation is intended to be privileged. That question should be decided deliberately, not assumed.

2. Scope, in writing

   The allegations to be examined are stated in writing before the first interview. If new information suggests the scope should change, I raise it with the employer directly rather than taking unilateral steps to expand or narrow the assignment.

3. Evidence and interviews

   I identify the documents, messages and records that should be preserved, then interview the complainant, the respondent and the witnesses reasonably capable of confirming or undermining a material allegation. Interviews are conducted by video (Zoom or Teams) or in person as the matter requires, with appropriate admonitions, and each party is given a fair opportunity to respond to the allegations against them.

4. Analysis

   I weigh the evidence on the preponderance standard, unless policy or a collective bargaining agreement requires another. Where the scope calls for it, I determine whether substantiated conduct violated a specific policy. I do not offer legal conclusions; those remain with the employer and its counsel.

5. The report

   The report states the allegations, the evidence considered, the material conflicts and how they were resolved, and a finding on each allegation with the reasoning shown. It is written for the reader who will test it. Decisions about discipline and remedy are reserved to the employer.

Why an attorney-conducted investigation

California’s Fair Employment and Housing Act regulations require employers to provide for impartial and timely investigations by qualified personnel. The regulations do not say who must do the work, and an internal investigation is often the right choice. Retaining an outside attorney does three things an internal team cannot: it removes the structural conflict where the investigator reports to, or works alongside, the person complained about; it allows the employer and its counsel to decide, at the outset, whether the investigation should be conducted under the attorney-client privilege (City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023); and it brings a trained approach to scope, evidence, credibility and reasons that will be examined later by people who do this for a living. An attorney performing an attorney’s duties is exempt from California’s Private Investigator Act licensing requirement (Bus. & Prof. Code § 7522(e)), so the employer’s choice can turn on qualification and independence rather than licensing.

Matters I investigate

• Sexual harassment and hostile work environment complaints
• Discrimination on any protected basis, including disability accommodation disputes
• Retaliation and whistleblower complaints
• Complaints against executives, elected officials, board members and senior academics
• Bullying, abuse of authority and other violations of conduct policies
• Complaints arising in unionized workplaces, including matters subject to Weingarten rights and POBR/FBOR procedures
• Higher-education complaints under campus policies

Engagement and fees

Investigations are billed hourly, with an estimate provided once scope is agreed. There is no charge for the initial conflict check or scoping call. I work with counsel or directly with the employer, and I can begin within 1–2 business days of engagement in most cases. John A. Swarbrick Law is a partner organization of the California Employers Association.