25+ Years Defending CA Employers
Attorney-Led Investigations
Privilege-Structured
Free 15 min. Consultation
Does This Sound Like Your Situation?
Internal harassment or discrimination complaint just filed
Demand letter received but no lawsuit yet filed
EEOC or CRD charge received
Executive or senior leader misconduct allegation
Planning a high-risk termination and want it audited first
Negotiating a separation or severance agreement
Workplace violence or threat incident requiring response
Need a document hold plan in place before discovery
What's Actually at Stake in the Post-Incident Window
How the investigation is opened (who hires the investigator, who directs the work) determines whether the report is privileged or discoverable.
Once litigation is reasonably anticipated, preservation duties attach. Auto-deleted emails or routine retention purges become spoliation exposure.
A prompt and effective investigation is an element of the federal affirmative defense to non-supervisor harassment liability. Quality matters.
The Silenced No More Act (SB 331) restricts confidentiality and non-disparagement clauses on harassment, discrimination, and retaliation claims.
The post-incident window is short and high-leverage. Decisions made in the first 30 days about how to investigate, what to preserve, how to handle the accused, and whether to separate, decide what the case actually looks like if it ever gets filed. Most plaintiff-side leverage is built from things employers did or did not do during that window.
HR-Led Response vs. Counsel-Led Response
HR-Led Internal Response
HR opens an investigation directly. Findings and notes generally discoverable.
Document hold may be informal or delayed. Email retention defaults continue running.
Investigator may be a witness in the eventual case. Conflicts of role.
Separation agreements drafted from templates. SB 331 compliance not always reviewed.
Report and conclusions become primary plaintiff exhibits if a lawsuit is filed.
Counsel-Led Response
Attorney directs the investigation. Work product and attorney-client privilege structured at the outset.
Litigation hold issued formally. Retention purges suspended. Custodian list documented.
Independent attorney-investigator used where the investigator may be called as a witness.
Separation and severance agreements drafted to SB 331, Civil Code § 1542, and OWBPA standards.
Investigation findings positioned to support the affirmative defense, not to manufacture evidence against the employer.
“The difference between a defensible investigation and a discoverable one is decided on day one, before the first interview.”
How We Run Post-Incident Response
Open Under Privilege
Counsel is engaged before HR runs the first interview. The engagement is documented to structure the investigation under attorney-client privilege and work-product protection where the facts allow. The privilege decision controls what becomes discoverable later.
Issue the Document Hold
A formal litigation hold goes to all relevant custodians the day litigation is reasonably anticipated. Auto-delete and retention purges are suspended. Custodian lists, source systems, and personal devices in scope are documented. This is what defeats spoliation arguments later.
Run a Defensible Investigation
Interviews are conducted in a defined order, witness statements are documented, and the investigator’s notes are structured for privilege where possible. Where the in-house team is a potential witness, we use an independent attorney-investigator.
Decide on Separation Carefully
Post-incident terminations are high-risk moves. We audit the personnel file, evaluate the timing against retaliation risk, and run the decision through the same lens a plaintiff lawyer will. Where separation makes sense, we draft an SB 331 and § 1542 compliant agreement.
Document the Closure
The investigation closes with documented findings, documented corrective action, and a written record that supports the affirmative defense. This is the record that wins or loses a Faragher-Ellerth or § 12940(k) failure-to-prevent argument months later.
The post-incident window is short. The work has to happen now. Every day before the investigation is structured is a day of unprotected exposure.
Tell us what happened. We’ll scope the response, identify the privilege and hold steps to take today, and lay out the next 30 days in a free 15-minute call.
What Our Post-Incident Engagements Cover
Investigations
Harassment and discrimination complaints. Retaliation allegations. Executive misconduct. Workplace violence and threat incidents under SB 553. Whistleblower complaints under § 1102.5. Wage and hour anomaly investigations. Privilege-structured engagement letters and investigator selection.
Separation & Severance
Pre-termination risk audits. SB 331-compliant separation agreements. Civil Code § 1542 general releases. OWBPA waivers for employees 40+. Severance benefit structuring. Reference and statement-of-cause negotiations. Coordination with COBRA and final-pay timing.
Document & Litigation Hold
Formal litigation hold issuance. Custodian identification and acknowledgment. Email retention and auto-delete suspension. Personal device and BYOD scope. Source-system inventory (HRIS, payroll, security footage, Slack/Teams). Hold maintenance and lift documentation.
Most post-incident engagements move quickly. The first call is free and almost always sets the framework for the entire response.
Frequently Asked Questions
We had a complaint filed yesterday. Is it too late to structure the investigation under privilege?
Usually not, if you act today. Privilege structure depends on how the investigation is opened and who directs the work, not on the calendar date. If HR has already started preliminary fact-gathering, we can often still bring counsel in to direct the formal investigation and protect the substantive work under privilege. The faster the call, the more is available.
Do we have to investigate every internal complaint?
California employers have a duty to take reasonable steps in response to complaints of harassment, discrimination, and retaliation under Gov. Code § 12940(k). A documented, prompt, and effective investigation is the central piece of the Faragher-Ellerth affirmative defense. Failing to investigate, or running a sloppy investigation, is one of the most common ways employers convert a defensible incident into liability.
Can we still ask for confidentiality in a separation agreement?
Partially. The Silenced No More Act (SB 331, effective 2022) prohibits confidentiality and non-disparagement provisions that prevent the disclosure of unlawful conduct, including harassment, discrimination, and retaliation. Confidentiality of the settlement amount, business information, and trade secrets is still permissible. We draft agreements that maximise what you can protect within the SB 331 framework.
When does a litigation hold actually have to be in place?
The duty to preserve evidence attaches when litigation is reasonably anticipated, which is often well before a lawsuit is filed. A formal demand letter, an EEOC charge, an internal complaint of significant misconduct, or even a threatening communication can trigger the duty. Issuing the hold on the same day the trigger event occurs is the safest position.
Should we use an outside investigator or handle it internally?
It depends on the seniority of the accused, the complexity of the allegations, and whether the in-house investigator might be a witness. For senior-leader allegations, board-level matters, or any case where in-house HR could be perceived as conflicted, an independent attorney-investigator strengthens the defensibility of the result. For lower-stakes routine complaints, a trained in-house investigator with counsel support is usually sufficient.
Incident Just Happened? Start Structuring the Response Today.
The post-incident window is short, and most plaintiff-side leverage is built from what employers did or did not do in those first thirty days. We help California employers open investigations under privilege, issue document holds, structure separations and severances under SB 331, and document closure in a way that supports the affirmative defense if a lawsuit ever follows. Tell us what happened. We’ll scope the response in a free 15-minute call.
Free. No obligation. Responses within 1 business hour. Employer-only representation, never employees.