Is this legal? Is there grounds for a lawsuit?

Asked over 1 year ago - San Jose, CA

My wife is currently being investigated due to her being accused of showing favoritism. Human Resources has moved her to a different department while they investigate. They are asking associates about whether she shows favoritism towards others, along with questions on what they "think" of her personal life and what she does outside of work. HR has not told her why they put her in another department or when/ if she will return to her department or even if this is something she can be termed for. She is in the dark with this. She only knows the questions being asked of her because everyone is talking about it in her department.

Attorney answers (3)

  1. Christine C McCall


    Contributor Level 20


    Lawyer agrees

    Answered . Nothing that you have described is per se unlawful employer conduct. Employers have the right to investigate complaints about employees and managers. Your wife has not been terminated or denied her pay or benefits. Patience can be hard to come by in such anxiety-producing circumstances, but a deep reservoir of patience is what is needed for the present.

    No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended... more
  2. Neil Pedersen

    Contributor Level 20


    Lawyer agrees

    Answered . Yes, what the employer is doing is legal. No there are no grounds for a lawsuit based on your stated facts. Favoritism by a supervisor in the workplace can cause several bad problems - envy, frustration, anger, lack of motivation and dissension among the workers. A good employer will investigate any claim of favoritism and eliminate it if found to exist. A good employer will also remove the alleged offender from the affected workplace while the investigation is continuing. This is a competent HR department operating by the book.

    The end result can be many things. Your wife may be found to have engaged in no favoritism and returned to her prior position or left in the new one. If found to be true, she might be disciplined, terminated, retrained or counseled. AS long as the motivation for the adverse employment action is not based on your wife's membership in a protected class of people, or based on your wife's participation in some form of legally protected activity, the employer can do just about anything it wants.

    Such is the nature of the at will relationship.

    I wish you and your wife the best of luck.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed... more
  3. Darren Jarold Campbell

    Contributor Level 3

    Answered . Employers are required under California and federal law to investigate complaints of discrimination or retaliation. Allegations of "favoritism," if based on a protected class, would fall within the definition of discrimination under both California and federal law. Accordingly, what your wife's employer is doing is legal and if your wife has engaged in discrimination, she can absolutely be terminated for such conduct.

    While it is in everyone's best interest to conduct an investigation confidentially, it is often times impossible to do so. When I have conducted investigations in the past, I have requested that the employees I interviewed refrain from discussing the issues with anyone else and employers can discipline employees for discussing confidential investigation issues, but must be careful that in so doing they do not create a bigger problem by retaliating against an employee for participating in an investigation. Furthermore, your wife does not have a "right" to know the progress of the investigation and the employer should not inform her of the results/conclusions of the investigation until it has been concluded because she could retaliate against employees for participating.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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