“Splitting the Baby” Isn’t Always the Wisest Decision

If you’ve ever read the account of King Solomon, revered for his wisdom and sound judgment in the Hebrew Bible, you are probably familiar with the his first recorded decision as King. (1 Kings 3:16-28)

King Solomon Makes a Difficult Decision
Two women who had newborn baby boys stood before the new King asking for justice.  Both were frantically claiming that the dead baby belonged to the other and the live baby was hers.

There was no way to know which woman was telling the truth.  In a flash of brilliance, the King commanded that a sword be brought to him.

King Solomon declared, “Cut the baby in half!  That way each of you can have part of him.”

“Please don’t kill my son,” the baby’s mother screamed.  “Your Majesty, I love him very much, but give him to her.  Just don’t kill him.”

The other woman shouted, “Go ahead and cut him in half. Then neither of us will have the baby.”

Seeing the true mother’s love, King Solomon declared, “Don’t kill the baby.” Then he pointed to the first woman, “She is his real mother. Give the baby to her.”

Splitting the Baby:  A compromise solution that may be used when the truth cannot be easily determined.
The expression “splitting the baby” is sometimes used to refer to compromise solutions which are made when determining the actual truth does not appear to be possible.  For example, in “he said/she said” situations in the workplace, the employer is often called upon to “pick a side” or “split the baby.”  When management cannot or will not pick a side, the splitting of the baby typically results in either nothing being done or both sides being disciplined, up to and including termination.

In Mendoza v. Western Medical Center Santa Ana, (2014) 222 Cal.App.4th 1334, the plaintiff alleged that he had been subjected to sexual harassment by his immediate supervisor.  The supervisor admitted to the conduct, but asserted that he was “a reluctant participant in conduct initiated by” the plaintiff.  There were no witnesses to what had allegedly occurred between the two parties.

After a perfunctory investigation by the two employees’ supervisor, upper management determined that both employees were “complicit in inappropriate and unprofessional behavior” and terminated both employees.  The plaintiff had been an employee for over 20 years and was credited with being an excellent employee.  He filed a lawsuit alleging that he had been wrongfully terminated in retaliation for making his complaint.   In its defense, the employer asserted that, based on its investigation, the termination was based on its good faith belief that the plaintiff had willingly participated in sexual misconduct on the job.

A Thorough Investigation is Key
When employers conduct a thorough investigation and then make a good faith determination based on the results of the investigation, they have a defense to lawsuits like the plaintiff in Mendoza brought.  However, where the investigation is not “thorough” and/or the employer fails to act in “good faith,” the defense is not available and the employer can be subject to liability for wrongful termination.

In the Mendoza case, the plaintiff’s expert criticized the quality of the investigation. The expert pointed out that the employer did not develop a formal investigation plan; did not take written statements from the plaintiff or his supervisor; did not act in a prompt manner; and, once the investigation did begin, the supervisor conducting the investigation interviewed plaintiff and his supervisor simultaneously and no other witnesses.  The expert also pointed out that the supervisor who conducted the investigation was not trained to handle such matters and was the supervisor for both parties.  At trial, the jury awarded the plaintiff $238,328 and the employer appealed.

The appeal resulted in a reversal and order for a new trial based on an inappropriate jury instruction.  However, in another section of the decision the court rejected the employer’s assertion that it could not be found liable because it had conducted an investigation and had acted in good faith based on the results of the investigation.

Based on the plaintiff’s expert’s testimony, the appellate court concluded that the investigation was not thorough and it appeared that the employer “did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when [the plaintiff] made his complaint.”  (Id. at p. 1344.)   In a footnote at the conclusion of the opinion, the court emphasized the significance of a “thorough investigation” and an employer’s good faith decision based on such an investigation:

“At oral argument, defense counsel asked (perhaps rhetorically) just what employers were expected to do when faced with a scenario in which two employees provide conflicting accounts of inappropriate conduct. Our answer is simple: employers should conduct a thorough investigation and make a good faith decision based on the results of the investigation.  Here, the jury found this did not occur.  Hopefully, this opinion will disabuse employers of the notion that liability (or a jury trial) can be avoided by simply firing every employee involved in the dispute.  (Id. at fn. 4, p. 1345; emphasis added.)”

In essence, the court declared that splitting the baby is no substitute for a thorough investigation and a good faith decision.

There are several steps that employers can follow to help ensure that investigations are thorough.  These steps include the following:

1.    Establish and follow a strong and adequate written policy prohibiting illegal discrimination, harassment and retaliation that also sets forth an effective procedure for making and investigating complaints.

2.    Document all complaints, including informal, off the record and oral complaints, and the action taken by management in response to the complaint.

3.    Act promptly.

4.    Use a qualified investigator.  By law, the only persons authorized to conduct workplace investigations for third parties are attorneys and private investigators. (California Business and Professions Code section 7522.)  It is illegal for human resources consultants who are not licensed attorneys or private investigators to conduct investigations, except for their own employers.  In fact, any employee may legally conduct an investigation for their employer.  However, anyone conducting a workplace investigation should be trained and, preferably have significant experience conducting workplace investigations.

5.    Where possible, the investigator should be willing to “break the tie” in “he said/she said” situations by making credibility determinations, character assessments and/or the use of circumstantial evidence.  These determinations should be documented and explained in the investigator’s report.

6.    If the investigator is unable to determine what occurred, this should be documented and explained.

7.    When the employer makes the decision to discipline an employee based on the results of an investigation, the reasoning should be reduced to writing to document the reasoning process and evidence the employer’s good faith.

8.    Remember that juries in employment cases generally consist of 12 employees, each of whom have had at least one bad experience with an employer, who are called upon to second guess an employer’s decision.

When It Comes to Workplace Investigations, Splitting the Baby Just Doesn’t Work
Although it worked for Solomon, splitting the baby is not a wise practice when it comes to workplace investigations and employer actions based on a workplace investigation.  Simply, doing nothing or disciplining everyone is never a substitute for a thorough investigation and good faith determination.  While it may take time, be costly and inconvenient, conducting a thorough investigation by a qualified investigator who produces a report that management can rely upon in good faith will always be quicker, less expensive and more convenient than a lawsuit.
Dan Rowley, September 2016

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