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Why Investigate Behavior That Is Not Illegal?

Jun 25, 2021

From sarcasm to worse, many behaviors that bother other employees are perfectly legal. Nevertheless, our office has seen a steady rise in requests for investigations of problematic, yet legal behavior, such as bullying. Regardless of legal liability, bullying comes at a cost – an emotional cost for employees and a financial cost for employers.

The effects of bullying can extend beyond its target, making other employees uncomfortable. This can lead to decreased productivity and increased employee turnover, with targets and witnesses of bullying feeling emotionally drained, avoiding contact with the “bully,” or even seeking employment elsewhere. Employers are also less likely to recruit skilled candidates into an unpleasant work environment, and negative reviews online can even scare off potential applicants. In addition, such workplace dynamics can also impact client and customer relationships.

How Investigations Can Help

Employers are finding that identifying and addressing interpersonal conflicts as soon as they arise leads to a healthier work environment, happier employees, and ultimately a stronger bottom line.

A workplace investigation signals to employees that their concerns matter and that the behavior of bad actors will be addressed. Meeting with an independent investigator empowers employees to share their concerns without fear of reprisals, so that employees feel heard and employers can understand the full extent of the behavior and its impact on the workplace. This allows employers to make well-informed decisions when taking steps to repair damaged relationships, improve the work environment, and prevent the situation from becoming more serious.

Additionally, when management fails to respond to concerns, employees feel undervalued and lose faith in their employer’s ability to handle other more serious complaints. This could cause employees to remain silent about more serious issues down the line, if they feel it is unlikely their coming forward would bring about a meaningful response. Conversely, by treating employee concerns seriously, regardless of legal liability, employers engender trust within their workforce and are more likely to learn of issues early on, as a result.

Examining Workplace Culture

Occasionally, issues in the work environment are cultural, rather than tied to a specific person. In such cases, a workplace assessment, sometimes called a climate survey, can be a useful tool for employers to learn more about the root causes of low morale, high turnover, etc. Employees often speak more freely when discussing concerns anonymously with an external investigator. Our assessment reports, which aggregate employee responses and pull out relevant trends, allow employers to read the workplace’s metaphorical thermometer at a glance.

The Future of “Bullying”

Finally, it may only be a matter of time before bullying in the workplace does become illegal. In California, bullying itself is not illegal, but employers are required to provide training to their employees about the “prevention of abusive conduct,” which is analogous to bullying. (See California Government Code section 12950.1.(h)(2).) Many employers already have policies in place prohibiting bullying or other unprofessional conduct. If the law evolves and bullying does become prohibited conduct under California labor and employment law, employers already taking steps to investigate and address these issues will start off on sound footing.

By Garrett Smith
By Alezah Trigueros