2019 hra wa - presenters - c.morisset - investigations...• weingarten requirements ‐ nlrb v....

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Common November 2018

Workplace Investigations: NHRMA HR Academy

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Catharine Morisset

Partner, Seattle

[email protected]

Your Presenter

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Today’s Goals

• Why Investigate? When?

• Who Should Investigate?

• How?• Preparation

• Interviews

• Documents

• Report

• Remedial Actions• Investigations gone bad

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Why?


EEOC’s Investigation Guidance

1. Prompt

2. Impartial

3. Confidential

4. Trained Investigator

5. Thorough

6. Proper Questioning

7. Assess Credibility

8. Make a Determination

http://www.eeoc.gov/policy/docs/harassment.html


Why Investigate?

Why Do Employers Investigate Employee

Complaints?

• The law says you must

• The law says you should

• Mitigate risk

• Help out the company

• Help out the employee

• Because it’s your job

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Why Investigate?

Title VII Affirmative Defenses:

• No Tangible Employment Action-Supervisors(1) Employer it took reasonable steps to prevent and

promptly correct sexual harassment in the workplace, and

(2) The aggrieved employee unreasonably failed to take advantage of the employer's preventive or corrective measures.


Why Investigate?

Title VII Affirmative Defenses:

• Tangible Employment Action(1) Supervisors: No affirmative defense

(2) Non-Supervisors/Coworkers: Employee must show that employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.

https://www.eeoc.gov/policy/docs/harassment.html


Why Investigate?

The Supreme Court’s guide to avoid liability:(1) Establish and promulgate an anti-harassment policy with

complaint procedures (being sure to include procedures for supervisor harassment).

(2) When a complaint is made pursuant to those procedures, follow the tried and true advice: • Take the complaint seriously, • Investigate it promptly and thoroughly, and• Respond/punish promptly and adequately.

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Why Investigate?

• Adverse employer decisions should be based on articulable, legitimate, business reasons.

• Monitor and Prevent Retaliation! The law forbids retaliation when it comes to any aspect of

employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, participating in an investigation, and any other term or condition of employment.

• Mitigate against other potential claims


Avoid or Minimize

Legal Liability

Maintain or Improve Morale

Improve Factual Basis for Decisions

Set ExampleDemonstrate Commitment to Policies

Why?

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When?

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When Should You Conduct An Investigation?

Misconduct Observed By Management

• Even when there is no “complaint” the employer must investigate Just witnessing the conduct is enough to require a response by

the employer

An employer may be obligated to conduct investigations in the absence of an employee complaint if the employer “knows or should have known” of the conduct. See 29 CFR § 1604.11(d) (2003) (emphasis added).


When Should You Conduct An Investigation?

OR Misconduct Reported By Employees

• Even when an employee requests no action, the employer must respond:

Even when an employee makes “off the record” reports, the employer must respond

Anonymous Complaints

Vague Complaints

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Is The MisconductSerious Enough?

When isolated incidents that are not “extremely serious” come to the attention of management, appropriate corrective action should still be taken so that they do not escalate. Faragher v. City of Boca Raton, 524 U.S. 775, 786‐788 (1998).

When Should You Conduct an Investigation?

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Paul is always talking loud on the phone and I can’t concentrate on my work.

I can overhear Paul talking on the phone making sexual comments and inappropriate jokes.

When Should You Conduct an Investigation?

EXAMPLES


When?

• Promptly• Lose evidence

• Situation may escalate

• Prevents further misconduct

• Opportunity to solve problems


Must the Company Investigate?

• The HR Department receives an unsigned letter containing:• allegations of product theft.

• allegations of gender bias in a specific work group.

• allegations of a manager manipulating time records to reduce overtime.

• allegations of illegal drug use by the sales team.

• allegations of harassment by a customer.

• allegations of an employee passing out in the warehouse.

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• When employee Sally meets with you, she reports:

• product theft.

• gender bias in a specific work group.

• a manager manipulating time records to reduce overtime.

• illegal drug use by the sales team.

• harassment by a customer.

• an employee passing out in the warehouse.



• At a Company Conference, you overhear comments that lead you to believe there could be :

• product theft.

• gender bias in a specific work group.

• a manager manipulating time records to reduce overtime.

• illegal drug use in a warehouse.

• harassment by a customer.

• an employee passing out in the warehouse.

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Who?

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Who?

• Investigators should have specific training

• Investigators should be credible

• Investigators should be impartial

• Investigators should be prepared to testify about the investigation.

• Employee should accept the investigator


When To Use An Outside Investigator

• Timing issues

• Expertise

• Complexity or legal liability

• Bias

• Cost

• Managers, Owners, or Elected Officials

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It’s You! Getting Started

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Preparation, Preparation, Preparation

• Anticipate charges and/or lawsuits

• Keep relevant records

• Ensure that your employee handbook complies with all federal, state, and local laws

• Have a general strategy

• Communicate caring and concern

• Have an open door policy


Investigation Planning• Review employee files

• Collect and review documents• Relevant policies

• What was violated? Retaliation?

• Electronic communications?

• Create list of persons with knowledge

• Determine information to collect

• Set time table

• Seek legal advice

• Seek internal advice


Investigation Planning (continued)

• Determine how you will document the investigation

• In person interviews

• Skype?

• Employee-prepared statements

• Investigator-prepared statements

• Tape recording?

• Who will get you documents?

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A Word of Caution

• Investigate complaints against senior managers just like you would any other complaints

• Investigate complaints about “star” employees just like you would any other complaints

Prepare For InvestigationGather Documents• Complaint• Personnel Files:

• Complainant• Accused• What are we looking for?

• Recent evaluations• Discipline• Pay issues• Promotion/demotion

Prepare For Investigation

Gather Documents

• Electronic Records:

• Emails• Texts• IMs• Assess need for IT involvement

• Video Surveillance

• Public Records

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Prepare For Investigation

• Create witness list

• Outline questions

• Determine order of interviews

• Set time table

• Result = educated and prepared before interviews!


Seek Legal Help When . . .

● You need a second opinion

● You receive a demand letter or call from employee's attorney

● The employee refuses to cooperate in the investigation or makes unreasonable demands

● The investigation reveals that the problem is more pervasive than you imagined

● The accused employee threatens litigation

● The investigation involves a high level executive, officer, or director


The Interviews

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Conduct The Investigation: Interviews

• Don’t promise confidentiality

• Can you ask witnesses to keep interview confidential?

Confidentiality And The NLRB• NLRB held that instructing or even asking witnesses not to discuss

investigation with others until after the investigation has been completed violated NLRA Section 7 rights for employees to engage in concerted activity. (Banner Health System, July 2012).

• Board: While disapproving of blanket discussions, stated that such a prohibition may be justified by showing “a legitimate business justification” that outweighs an employee’s Section 7 rights.

• Possible Considerations: witness protection, danger of evidence destruction, danger of fabrication of testimony, need to prevent cover-up.


Remember the five W’s and an H• Who was present when it occurred; who have you told

• What happened; what was said; what would you like to see happen

• Where did it occur

• When did it occur

• Why did it occur; why would someone accuse you of this

• How did you respond

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UNION?

• Weingarten Requirements‐ NLRB v. Weingarten, Inc. (1975) 420 U.S. 251‐ Right to union representation‐ If employee reasonably believes that disciplinary

action will result‐ Employee must request, but . . .employer must give

adequate information ‐ Practical considerations

Interviewing Suggestions

• Explain Role of Investigator

• Treat Interviewee with Dignity

• Questions:

Open-ended and broad

Then go to specifics

Chronological

Tough or embarrassing questions last


• Disclosures of purpose & seriousness• Explain presence of any witness, note taking• Don’t put words in witnesses’ mouth• Don’t identify who said what• Don’t discuss “your” opinions• If witness is emotional, take breaks• Don’t disclose more than necessary• Maintain control of the interview• Avoid accusatory statements

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Opening and Closing Statements

• “I’m here to look into some allegations that have been made.”

• “I want to understand what you have seen or heard.”

• Limited confidentiality

• Anti-retaliation

Closing Questions

• Anything else I should know?

• Any other documents I should review?

• Anyone else I should speak with?

• How to reach you if there is anything additional


Documentation Of Interviews

Options

• Prepare statement and have witness review and sign

• Have witness sign questionnaire upon completion

• Witness prepare statement

• Investigator notes - NOT as effective (easy to dispute)

• Electronic recording? Maybe. Consent on tape; transcribe and have witnesses sign as accurate

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Post-interview

Follow Up with Main Players

• Important to do this BEFORE reaching decision or giving “initial findings” to parties

• Opportunity to ask more questions from complainant and accused, and given them opportunity to provide additional information

• Consider having parties confirm additional information in writing

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Documents


Preserve Evidence!

• Witness statements, text messages, emails, videos

• Engage IT staff

• Contemporaneous

• Document chain of custody

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Investigation File

• Confidential ethics investigation file should be maintained separate from personnel file

• Files can be discoverable

• Mark privileged documents as “attorney-client privileged”

• Keep in separate part of investigation file or keep in separate file altogether

• Communications with counsel; reflecting advice, seeking advice or instructions, etc.


Did you complete your investigation?

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Preparing The Investigation Report

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• Investigation gives information to the decision maker to make a good decision

• Internal investigations are mostly an effort to objectively determine facts, not assess legal issues

• You are not a lawyer

• Assume the report will eventually be disclosed to everyone

• Attorney-client privilege will likely be waived if litigation occurs

The Investigation Report: Preliminary Considerations


Structure of the Report

Beginning- Executive

Summary- Complainant

Summary

Middle- Scope of

Investigation

- Evidence Considered

- Factual Background

- Analysis

End- Conclusion

- Sign & Date

- Exhibits

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I. Introduction• Timeline of complaint and investigation

• Authority of investigator

• Qualifications of investigator

• Background information

II. Synopsis of complaint• How and when the complaint was received

III. Summary of allegations• List the factual allegations by complainant

• List workplace policies implicated

Structure Of The Investigation Report

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Facts v. Conclusions

• If Sally tells you, “John grabbed my breast,” which do you write?

• “John grabbed Sally’s breast;” • “John sexually harassed Sally;”• “John physically assaulted Sally;” • “Sally reported John grabbed her breast”

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IV. Analysis of each allegation

• Summarize evidence relevant to each allegation• Documents

• Complaining witness(es)

• Third party witness(es)

• Subject(s)

V. Findings/Corroborated?• Address credibility

• Limit to fact finding

• State limitations of report

Structure Of The Investigation Report

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VI. The Conclusion

DO reach a conclusion!

• Review and analyze all evidence

• Review your notes

• Make credibility determinations

• Consider motives

• Does evidence corroborate or contradict?

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NOT legal conclusions:

• “engaged in illegal harassment or discrimination,” or

• “violated the law”

BUT Accurate, appropriate language

• “___ engaged in unprofessional conduct”

• “violated our ____ policy”

• No policy violation occurred

VI. The Conclusion

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Determine The Level Of Discipline

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Legal Standard:

“Reasonably calculated to end the harassment.” Ellison v. Brady, 924 F.2d 872, 882 (9th Cir.1991) (emphasis added).

Remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. EEOC Notice N‐915.002 .

What Corrective Action?

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Legal Standard:

Disciplinary measures should be proportional to the seriousness of the offense. Mockler v. Multnomah County, 140 F.3d 808, 813 (9th Cir. 1998); see also EEOC Notice N‐915.002.

Proportional To Conduct


Corrective Action

Corrective action should:• Not appear to punish the complainant

• Be consistent with discipline imposed for the same or similar violations

• Follow company policies or rules


Corrective ActionFactors to consider:

• Major vs. minor misconduct• Employee’s prior work history

• Length of service• Other discipline?• Other complaints?

• Forms of permissible discipline• Defined by policy or contract• Demotion• Suspension• Training

• Prior disciplinary actions for similar misconduct

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Corrective ActionConsider Mitigating Circumstances:

• Corrective Discipline vs. Summary Discharge• Weingarten violations• Double jeopardy• Employee’s past record• Length of service with company• Knowledge of rules• Lax enforcement of rules• Unequal or discriminatory treatment• Union?• Protected activity


Corrective Action?

If evidence did not establish misconduct:

• Determine whether further communication of expectations still is necessary to ensure professional and respectful conduct

• Prepare appropriate written documentation, including statement that retaliation is prohibited


What Do You Say to the Complainant?

• Not following up may cause a complainant to suspect that he or she has not been fairly treated by the employer

• But complaint is not entitled to know “everything”

• Periodically check in with the complaining party

• Document follow-up

• Document effectiveness of remedial measures

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Investigations Gone Wrong


Top Investigation Mistakes

• Delay

• Not investigating

• Not investigating enough or, overdoing it

• Oversharing

• Requiring proof of “truth”

• Appearance of bias

• Real or perceived conflicts of interest


Investigations Gone Wrong: Real Examples

Barber v. United Parcel Service, Inc. (Kentucky, 2016)

• Hostile work environment (race)

• Inadequate investigation referenced throughout trial

• Verdict: $5.3 Million (8 employees)

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Investigations Gone Wrong: Real Examples

Alexis Berger v. Kargo Global, Inc. (New York, 2017)

• Claimed fired for “acting like a man”

• Berger was placed on leave for poor performance and rude treatment of her employees, then terminated for cause after violating a noncompete clause.

• Poor internal investigation regarding her performance

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Thank You

Catharine MorissetFisher & Phillips LLP

[email protected]