The Anti-SLAPP statute can be a great litigation tool. But I am newly frustrated by the unwillingness of California courts to apply the statute to lawsuits purporting to challenge statements made in the course of workplace investigations. Since these investigations are generally required by law, it seems to me that a target of an investigation should not be able to use the Courts to chill such speech. The law is not on my side:
[T]he fact that the private company’s personnel department is charged with implementing a harassment policy and establishes procedures that mimic those of a governmental agency does not transform it into an “administrative body.” Nationwide’s human resource specialist may indeed be vested with discretion, apply California law regarding harassment, and make decisions affecting the personal and property rights of the accused harasser. Still, the human resource specialist is not an administrative body possessing quasi-judicial powers. . . .
Here although we agree the elimination of sexual harassment implicates a public interest, an investigation by a private employer concerning a small group of people does not rise to a public interest under section 425.16.
See Olaes v. Nationwide Mutual Ins. Co., 135 Cal.App.4th 1501 (2006). In a more recent case, Carpenter v. Jack in the Box Corp., 151 Cal. App. 4th 454, 472 ( 2007), the court enthusiastically agreed with Olaes, holding that an Anti-SLAPP against claims arising from statements made during employer’s investigation of sexual harassment fail because they are (1) neither made during an official proceeding, (2) nor statements “concerning issues of public interest.” On this basis, the court determined the employer’s Anti-SLAP motion was frivolous and entitled the plaintiff to attorneys’ fees and costs under CCP 425.16. Ouch!