Uber: A Case Study In Workplace Investigations

Uber Technologies, Inc. recently made big headlines after it hired former U.S. Attorney General Eric Holder to investigate sexual harassment allegations by a former employee at the ride-hailing service. The employee claims that during her year working as an engineer at Uber, she and other female staffers reported multiple instances of sexual harassment to the company’s human resources department, to no avail. Uber’s response to the allegations provides some valuable lessons for employers:

1.  Employers Have An Affirmative Duty To Investigate Once They Learn Of Possible Harassment 

California’s Fair Employment and Housing Act requires employers to investigate and take corrective action once they learn of possible harassment or discrimination. Often times, the target of harassment will raise a complaint to a supervisor or human resources personnel, but that is not always the case. Although the Uber employee claims she complained to HR while she was employed, Uber did not investigate her allegations until she posted them through a highly circulated blog post. However an employer learns of potential harassment — whether from the target himself or herself, from other employees, through social media, or other avenues — it must immediately undertake a prompt, thorough and impartial investigation of the allegations.

2.  It Is Never Too Late To Investigate And Take Corrective Action

Uber did not investigate its former employee’s allegations until after she had already separated from the company. While investigations should commence immediately upon learning of harassment allegations, many employers mistakenly believe that if an employee quits after complaining or in the middle of an investigation, or they do not learn of the alleged harassment until after the employee has separated, there is no need to investigate. That is not the case. The employer’s obligation to investigate and take effective remedial action does not end simply because the target of the alleged harassment is no longer with the company. Indeed, if the harassment is corroborated, the employer must take appropriate corrective action regardless of whether the complaining employee is still with the organization.

3.  Hiring Outside Counsel To Investigate Is Not Required, But Is Always A Good Idea

While employers are free to select an impartial and qualified person within their organization to conduct an investigation, the safest option is to retain experienced outside counsel, as Uber did in retaining former Attorney General Holder. While some investigations may be effectively conducted by HR, there are several reasons why employers should retain outside counsel to conduct the investigation, such as when the complaint is by or against an individual with more authority than the investigator, when the investigator has any perceived or actual biases related to the complainant or key individuals, or when other circumstances would make it difficult for the investigator to maintain independence. If there is no one in-house qualified to conduct an investigation, California law permits only attorneys or licensed private investigators to conduct them. As a general rule, experienced outside counsel should investigate complaints that are likely to lead to litigation or that involve high-ranking employees.Workplace investigations, if done correctly, can provide the basis for asserting important defenses to claims like wrongful termination, discrimination and harassment. It is therefore crucial that employers take their responsibilities to investigate seriously and give careful consideration when selecting an investigator.