Investigating Employee Misconduct In The Age of “Cancel Culture”
What is “cancel culture”?
During the last few years, there has been a groundswell of cultural movements seeking to rectify transgressions against traditionally marginalized groups, including women, Black people, members of the LBGTQ community, and Asian-Americans/Pacific Islanders. These movements have largely been fueled by social media. “Canceling” was a term coined and popularized by Twitter users as a public call for accountability, in the form of boycotting of individuals and/or entities for allegedly engaging in behaviors or expressing opinions in conflict with, or not supportive of, the evolving social landscape. These calls for accountability resulted in highly publicized firings – including employees who were not previously public figures – in industries such as entertainment, sports, and finance. At the same time, a counter-movement against “canceling” grew amid concerns that people were getting punished unfairly by what they referred to as a “cancel culture” for expressing unpopular opinions.
How can concerns about “cancel culture” impact workplace investigations and how can investigators adapt their practices to meet these challenges?
As social awareness of issues impacting underrepresented groups has increased, some employees have felt empowered to voice concerns about discrimination and/or harassment at work. However, employers and investigators should be aware that increased attention to these issues has also created a culture of fear for some employees who feel afraid that saying the wrong thing will get them fired from their jobs. Employers and investigators must endeavor to find a balance between impartially investigating concerns raised by employees and treating employees who are accused of misconduct fairly, as discussed below.
The decision to investigate. Employees who are alleged to have engaged in conduct in violation of the employer’s discrimination or harassment policy may feel that they are the subject of “cancel culture” because they are being investigated for what they consider to be a minor infraction or an expression of personal opinion. When making the decision about whether to launch an investigation and how extensive of an investigation to launch, employers should carefully consider whether the alleged misconduct violates company policies and if the alleged conduct is work-related. For example, if an employee complains that they feel offended because a co-worker has posted #AllLivesMatter (as opposed to #BlackLivesMatter) on their personal social media account, that would not likely violate employer policies. Under those circumstances, an investigation would not be necessary and could even invoke a complaint by the alleged wrongdoer that they are being retaliated against for engaging in lawful protected political speech.
Witness cooperation. Employees who are witnesses to alleged misconduct can be very hesitant to provide information they believe will reflect negatively upon alleged perpetrators of misconduct, due to concerns that the alleged perpetrator will lose their job. In those cases, employers and investigators should advise the employees that the employer has legal and ethical obligations to investigate the concerns at issue, that employees are obligated to cooperate and provide truthful information during an investigation, and that the investigation will be conducted in a manner to ensure fairness towards all parties and witnesses.
Post-investigation remedial measures. Employers should not rush to judgment when investigating concerns about employee misconduct. Rather, the decision to discipline an employee should be made after a thorough investigation has been completed. In instances when allegations have been substantiated, any discipline that is imposed should be commensurate with the employee misconduct and employer practices of handling comparable violations. Termination is not the only option; rather, employers can impose a variety of consequences, ranging from suspension without pay; education, training, and coaching; demotion; written warning; and loss of bonus (if permitted by the bonus plan) or pay decreases. It is also advisable to be as transparent as possible about the investigation process, so that employees can feel assured that any discipline imposed by employers is reasonable under the circumstances.
Conclusion: As the pandemic crisis and the social landscape continues to evolve, so too must the techniques that employers use to investigate workplace concerns. Employer missteps when conducting internal investigations can create significant legal and financial risks for employers and negatively impact a company’s reputation. This is particularly true in California.
Learn More: Join the author of this blog post, CDF partner and Chair of CDF’s Internal Investigations Practice Group, Daphne Bishop, and CDF attorney Ashley Lopeztello, during a complimentary webinar on April 27 wherein they will provide practical insights to assist employers with conducting internal investigations in today’s legal, virtual, and social landscapes.
Webinar Registration: To register for CDF’s upcoming webinar on “Adapting Workplace Investigations to Meet the Challenges of the Moment,” click HERE.