conducting effective workplace · pdf fileconducting effective workplace investigations . ......

Presented by: Diane Carman, Rick Grimaldi and Lori Armstrong Halber

http://delvacca.acc.com

Fisher & Phillips LLP

ATTORNEYS AT LAW

Solutions at Work®

CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS

Investigation Procedures

1. Initial Complaint

2. Preliminary Interview with Complainant

3. Emergency Interim Steps Prior to Investigation Being Conducted

4. Decision to Conduct a Formal Investigation

5. Planning the Investigation: Documents Checklist

6. Planning the Investigation: Logistics

Investigation Procedures - continued 7. Conducting the Investigation: Interviewing the

Person: • Complainant • Subject of the Investigation • Witnesses

8. Arriving at a Conclusion

9. Making a Recommendation

10. Implementing the Results of the Investigation

1. Initial Complaint/ Overview of Complaint System

• Complaint System (written, oral, by identified individuals or anonymously) • Company supervisor, HR professional, or Legal Department

attorney; or • Ethics “hotline”

• Decide where reports will be routed: Legal, HR, Internal Audit.

1. Initial Complaint/ Overview of Complaint System continued

• Complaints made to Supervisors, Human Resources Professionals and Legal Department attorneys (or matters coming to attention of these professionals) • Take all complaints seriously • Supervisors: Immediately contact Human Resources (unless

immediate action, such as contacting police) • Human Resources Professionals: Gather all of the facts and

allegations. If matter is serious, needing immediate attention, HR Professional should immediately contact the Legal Department.

• Do not promise total confidentiality. • Steps to take if complainant states that no one is to be told of

allegation.

• If approached by an employee with a complaint: • Secure a private area to speak with the employee • Listen closely and take notes • Thank the employee for bringing the complaint to your attention

• Get contact phone number for complainant where HR can reach him/her

Intaking a Complaint – Tips for Supervisors

• Explain that the Company takes complaints seriously • Remind the employee about non-retaliation • Remind the employee about confidentiality • Advise complainant that you have a duty to contact HR • Contact HR asap and provide HR with information and

phone number for complainant.

Intaking a Complaint – Tips for Supervisors

2. Preliminary Interview with Complainant

• Initial Statements: Address confidentiality, no retaliation, explanation of investigative process

• Objectives of Preliminary Interview: • Identify likely issues • Gather facts

• Open-ended questions • Determine basis for knowledge • Allow silence • Simple, straightforward questions • Observe body language

• Do not talk too much, share your opinion, characterize Company’s position, influence answers

2. Preliminary Interview with Complainant

Continued

• Ask following questions to gather facts and decide if

further investigation is needed: • Was person’s ability to work affected? • Were there any witnesses? How can witnesses be contacted? • Had incident happened previously? When, and how often? • Is there documentation (hard copy, electronic, email, Twitter, phone

text, Facebook, photograph, etc.) • Does complainant know of others who have experienced the same or

similar situation? • Are there any other issues complainant would like addressed? • Does complainant have any additional facts or information helpful to the

investigation? • Anything else?

THINGS YOU MUST SAY: • Thank the person.

• Ask if any reason he/she feels investigator cannot be impartial.

• Reinforce prohibition against any retaliation for good faith complaints/information.

• If a formal investigation, you will inform the person of plans.

• Strict duty of confidentiality on the employee’s part (with the exception of the employee’s spouse and attorney) and on your part, consistent with the Company’s responsibility to investigate complaints. You will provide information to those who need to know.

• The person will be required to continue to cooperate in investigation.

• Does the person have any advice on resolution? How could this situation be better for the person? (Make no promises!)

• Encourage the person to write down his or her version of the incident.

2. Preliminary Interview with Complainant continued

• Legal requirement • Harassment claims (no tangible action,

hostile work environment, prevent and promptly correct, alleged victim unreasonably failed to use process)

• Other claims (discrimination) • Risk of Injury/Death

• Risk/Loss to Company’s assets

• Risk to Company’s reputation

Deciding Whether You Need To Investigate

Discrimination Race Color Sex Age Religion National Origin Ancestry Physical or Mental Disability Marital Status Sexual Orientation Veterans’ Status Military Status

Legal or Company Obligation Title VII/local law/policy Title VII/local law/policy Title VII/local law/policy ADEA/local law/policy Title VII/local law/policy Title VII/Immigration Act/policy Title VII/local law/policy ADA/local law/policy State/local law/policy State/local law/policy Federal law/OFCCP/policy Federal/local law/policy

2. Identifying Issues/Type of Investigation Needed

2. Identifying Issues /Type of Investigation Needed • Harassment • Retaliation • Stress-Related Claim • Substance Abuse Matter

• Performance Evaluation • Breach of Right to Privacy • Violation of the Code of Business

Conduct and Ethics • Sabotage • Violence • Fraud • Whistle blowing • Wage and Hour violation • Other Laws

Title VII/local law/policy Title VII/local law/policy Workers Comp/ADA/FMLA/policy Federal/local laws and

cases/Substance Abuse Policy Company/Department practice Local case law/statute Code of Business Conduct and Ethics Safety Policies/Site rules Local case law/Company Policy Civil/Criminal laws/policy OSHA/EPA/other laws FLSA/state law/policy (Example: FDA, EPA)

• Perfection not required: review of remedial action in court

• Unprofessionally-conducted investigation can affect employer’s use of results; well-conducted and timely investigation provide legal defense, helps workplace in long- and short-term

• Court cases: legal repercussions for employers (disparate treatment, failure to investigate in timely manner; executives withholding documents); cases where employers won case with defense of timely and well-conducted investigation.

Untimely or Ineffective Investigation

Where necessary to protect the health, safety, environment, Company property, or where other individuals interests are at stake. Examples: • Allegations of violence, threats, or sexual

harassment involving physical touching, supervisory involvement, or rape.

• Allegations of criminal misconduct, such as theft of Company property, trade secrets, or money

• Sabotage

• Whistleblowing claims

• Retaliation

• Other serious incidents

3. Emergency Interim Steps Prior to Beginning Investigation

Possible Interim Responses • Law Enforcement (ex. actual or potential violence, child pornography) • Call Security • Suspension • Removal of employee from premises • Medical or psychological examination • Armed guard • Shutdown of manufacturing process • Pay for employee to go to a hotel or leave town • Communications to employees or others • Take all threats seriously/call Legal Department

3: Emergency Interim Steps Prior to Beginning Investigation

Violent Acts or Threats of Violence • Immediate attention to obvious or perceived threats • No such thing as a light-hearted death threat. Do not dismiss

such statements as “just talk” or “joking”. • Encountering potentially violent or disturbed person • When person has assaulted or injured someone. • Contact Legal Department for advice, including appropriate

communications to employees and others. • Contact appropriate authorities

3: Emergency Interim Steps Prior to Beginning Investigation

An Investigation is Necessary where: • Additional facts are needed • Speak with others • Review documents • You need special assistance from other sources (e.g. Security,

Legal)

An Investigation may not be Necessary where:

• Clear issue of employee misunderstanding of company policy • No more than a lack of communication • No other facts needed to resolve issue • No other outside resources are necessary

4: Decision to Conduct Formal Investigation

Documents Checklist (Examples of Policies) Collective Bargaining Agreements Salaried Personnel and Other Policies Code of Business Conduct and Ethics Fraud Policy Workplace Violence Policy EEO Policy Harassment Prevention and Correction Policy Internet Policy Travel Expense Policy Benefits Policy

5: Planning the Investigation

e

Employee Applicant and other

Documents

5: Planning the Investigation

Documents Checklist (examples)

Employee’s application/job description Personnel file Performance documentation

Any other memoranda, e-mails, handwritten notes, voice mails, etc. about employee’s performance or other pertinent issues

Manager’s documentation Expense Reports/other business records Documents from internal interviews Information from prior investigations

Employee Applicant and other

Documents

5: Planning the Investigation

Documents Checklist (continued)

Incident reports Sign-in sheets Signed acknowledgement of policies Annual goals and objectives Prior investigation files Prior complaints Notes or diaries of complainant Photographs, posters, pictures

• Identify who should conduct investigation. Ensure investigators are: - Unbiased - Experienced and expert (e.g. HR, EEO, Security, Internal Audit, Legal Department) - Avoid, “I can handle this myself”

• Consider creating investigation team, including possible members: • Other Human Resources professionals • EEO/Affirmative Action Expert • Physician • Psychiatrist/psychologist/social worker • Attorney • Security professional • Internal auditor • Manager/supervisor • Building management/safety professionals

6: Planning the Investigation-Logistics

• Possible external resources • Law enforcement • Security • EAP • ADA Job AccommodationNetwork

6: Planning the Investigation-Logistics

• Identify who should be interviewed: – Complainant – Accused – Those who may have observed the incident – Any person with relevant information – Anyone who wrote relevant documents – Consider those whom the complainant has requested you interview – Consider those whom the person you are investigating has requested you

interview – Other possible victims (For the above items, if you choose not to interview any of these people, you should document the reason.)

• Go to the source (ex. first-line supervisor instead of, or in addition to, Department Manager)

• Order of your interviews • Weingarten Rights • Where practicable, limit the number of interviews • Location of interview (confidential, safe, secure, private) • Consider offices remote from the individual’s work

location (consistent with safety consideration) • Informing those to be interviewed • Uncooperative employees

6: Planning the Investigation- Logistics

• Prepare detailed outlines of key issues, questions, and opening statement in writing

• Anticipate questions that interviewees are likely to ask (examples):

Why are you interviewing me?

Am I in trouble?

May I have my union representative/attorney/friend/family member with me?

Will I get into trouble by giving you this information?

I am afraid to tell you about Mr./Ms. X. He/she could hurt me.

Can you guarantee that no one will retaliate against me?

Haven’t you already made your decision?

6: Planning the Investigation- Logistics

Witness Interviews • Arranging Interviews

• Order (consider using more than one team if necessary)

• Lead questioner (suggestion: only one questioner)

• Prior notice (consider pros and cons)

• Location of interview • Notifying interviewees • Circumstances of employee

notification

Privacy and Defamation

Witness Interviews: NLRB Ruling • NLRB held that, under specific circumstances of one case,

instructing or even asking witnesses not to discuss investigation with others until after the investigation has been completed violated NLRA Section 7 right 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.

Witness Interviews • Strategy

• Demeanor of interviewer

• Required or voluntary • Should witnesses sign anything?

• Opening statement

• Information gatherer False Arrest Privacy Defamation

• Review written plans beforehand • Schedule blocks of time • Review pertinent aspects of your Company’s Policy

• All complaints taken seriously • Roles of complainant and others

• Interview • Confirm objectivity • Confidentiality (no total promises/need to know) • Obligations of complainant/others (confidentiality, no retaliation,

cooperation) • Instructions (e.g. truthful, ask questions, explain if hearsay) • Do not jump to conclusion in middle of interview

7: Conducting the Interview

7: Conducting the Interview Key: Know How to Ask the Questions

• Draft written questions/ follow up as appropriate • Consider saving possibly embarrassing or “tough” questions until

later in the interview • Don’t be afraid of asking “tough” or embarrassing questions that

need to be asked. • Start with “broad” questions; usually get story from witness before

asking more specific questions. Be flexible. • Do not ask the interviewee “leading” questions. Do not put words in the

interviewee’s mouth. Allow silence. • Ensure witness treated with dignity at all times.

7: Conducting the Interview

Key: Know How to Ask the Questions

• When you have completed asking all of your planned questions, continue with new questions based upon the interviewee’s responses.

• Ask questions which make the interviewee give the facts in chronological order.

• Ask one question at a time; do not ask a compound question. • Do not form conclusions in the middle of the interview. • Clarify answers. Review your understanding of the information

you receive in the interview with the interviewee. (Ex. “What do you mean by saying the manager is a “talker”?).

7: Conducting the Interview

Handling Difficult Questions

• Where the interviewee states the complainant is lying

• Non-cooperative witnesses

• Witnesses with ulterior motive

• Witnesses who want the attention

7: Conducting the Interview Ending the Interview

• Specifically ask the interviewee if he or she has any other information, documentation, or suggestions.

• Tell the interviewee to get back to you immediately if she/he has forgotten to tell you anything.

• General time frame. • Interviewee’s continuing obligation of confidentiality/no

retaliation/cooperation.

7: Conducting the Investigation

Assessing Credibility

• Interviewee’s demeanor

• Logic and consistency

• Corroborative evidence

• Circumstantial evidence

Physical Evidence • Paper records/documents/pictures • Electronic records/texts/emails/tweets • Surveillance

• Video cameras

• Detectives

• Fingerprints

• Handwriting

7: Conducting the Investigation

Interviewer’s Notes • Attorney-client privilege issues • Taking/keeping notes: litigation considerations • Interviewer’s notes should include:

• Interviewer’s name/signature/date • Witness’s name • Date interview conducted/notes prepared • Others present at interview • Location of interview • Your opening, closing statements • Policies provided to witness • Whether witness took notes • Credibility (observations, not conclusions)

7: Conducting the Interview

8: Arriving at a Conclusion

• Timeliness of complaint (if not timely, why not?)

• Previous patterns

• Motivation

• Credibility of interviewees

• Verify facts/fill in gaps

• If trouble making conclusion, decide why (perhaps you need

more facts, or need to confer with Legal Department)

• Consult with other professionals

9: Making a Recommendation

• Notice of Rule (written, posted, oral)

• Completeness/timing of investigation, information learned

• Proof (ex. documents, physical evidence, witness statements)

• Proposed penalty or action (serious offense, repeat, performance

history, length of service)

• Review of comparable people/situations for equal application

• Is the rule violated one that would appear reasonable in court?

No action (except documentable) Education for individual or group Discussion or counseling (document)

Written warning Suspension without pay Suspension with pay, or without, while evaluating facts Corrective action plan

Demotion Transfer Salary reduction Termination of employment Referral to criminal authorities Address additional issues that have

been raised Is there anything the Company can

learn from this situation? Proper documentation

9: Making a Recommendation Checklist of Options for Actions (examples)

Documenting Investigation and Conclusion • Report facts free of assumptions, legal conclusions and

mention of communications with legal counsel • Material to include in report

• Complaint, event, date, names of complainant, accused positions

• Location, departments, contact information

• Date concern brought to management

• Summary of issue(s) raised

• Date/name/position of interviewer(s)

• Relevant documents

• Final decision and implementation

9: Making a Recommendation

Documenting Investigation and Conclusion • Material to include in report (continued)

• Reference to applicable guidelines/policies

• Key facts on which you relied to make decision

• Analyze key findings (where inconsistent testimony, mention this and assessment of credibility, why you believed or did not believe person(s))

• Ensure you have most recent policy

• Conclusions • Violation of policy

• No violation of policy

• Evidence did not support conclusion of violation or no violation

9: Making a Recommendation

Example of Conclusions • Conclusion of Violation of Policy: “As a result of the

investigation, it has been concluded that Mr./Ms. X violated Company’s fraud policy by submitting receipts for business travel which had been scheduled and canceled.”

• Inconclusive Investigation: “Based upon the investigation, it could not be concluded that the supervisor of this employee committed a violation of Company policy or the law.”

• Describe issues resolved/not resolved • Identify any injuries sustained • Identify remedial action which has been, or will be, taken

9: Making a Recommendation

Communication with Management • Discuss conclusion with manager and, if appropriate, attorney • Make your recommendation to the appropriate line manager • Management will implement all facets of the action plans • Follow up as needed

• Communication to employee involved in the investigation • Communication to employees in the department

• Review with legal counsel to ensure you have minimized legal risks • Right to know only

• Counseling for employees as appropriate • Consider education/change of procedures

10: Implementing the Results

of the Investigation

10: Implementing the Results of the Investigation

Meeting/Communicating With the Employee Who Has Been the Subject of the Investigation

• Have more than one person present (whether in person or by telephone)

• Consider having security around/consider communicating by telephone

• Information to provide employee: conclusion, reason, confidentiality, no retaliation, any discipline

• Anticipate the questions the employee will ask, and be prepared to answer them, first orally, then potentially in writing (“Am I being fired?”; “How can I work with Mr./Ms. X?”; “Who in Company will be made aware of these results?”)

• Any appeal rights

• If the employee is being terminated, ensure proper exit interview procedures

• Documentation

• The conclusion reached

• Why you reached the conclusion • What action, if any, has been, or will be, implemented as a result of the investigation,

maintaining privacy of alleged perpetrator as much as possible

• Who will be implementing the action • What the employee should do if he or she

experiences retaliation of any sort

• Appeal rights

• Employee’s continuing obligation of confidentiality

• Security issues

10: Implementing the Results

of the Investigation Meeting With the Employee Who Has Been the Subject of the Investigation o Raised the Issue

10: Implementing the Results of the Investigation

To the employee who was investigated:

Communicating the Results in Writing • The issues raised

• The steps taken

• Explain the conclusion and the information upon which the conclusions were based

• Explain any issues that were not resolved, and why they were not resolved

• Explain the actions being taken regarding the employee as a result of the investigation

• Close by advising the employee to whom he or she should direct additional questions

10: Implementing the Results of the Investigation

To the employee who raised the issue:

Communicating the Results in Writing • The investigation has been completed

• Each of the issues raised has been reviewed thoroughly

• Appropriate action is being taken (with consideration of alleged perpetrator’s privacy)

• Request the employee ask questions

• Let the employee know who to contact if he believes retaliation has occurred

• The information must be kept confidential

Carefully plan for, and monitor issues regarding communications to third parties

• Employees, customers, suppliers, the media, etc. • Employee speculation and gossip, or interference

with the investigative process may lead to discipline. • Monitor the drafting and dissemination of related

communications, with input and approval from the Legal Department.

Investigation Learnings

Investigation Learnings

Ensure that one individual is the primary “owner” of an investigation

The lack of a clear “owner” of an investigation, including individual aspects of an investigation, can lead to an investigation conducted in a manner that is neither expeditious or thorough, as well as other undesirable consequences.

• Escorting an employee from the building, or ensuring that he or she leaves, should be done, if necessary, in as a discreet manner as possible.

• Safety concerns may mandate the input of the Corporate Security Director and Legal Department attorneys in preparing for employee discussions.

Investigation Learnings

Interview Logistics

REMEMBER THE “NEW YORK TIMES RULE” Investigation Learnings

Consider how what you write and do not write (including electronically) would

look published on the front page of the New York Times.

• Resist inclination to try to “catch someone in the act.” Contact Security and Legal Department professionals regarding any planned investigation actions.

• Remember that surveillance or monitoring of employees are not allowed to be done without the prior approval of the Company Legal Department.

Do not play the role of an undercover officer

Investigation Learnings

Investigation Learnings MEDICAL CONFIDENTIALITY

No medical information should be communicated to non-medical and other

personnel without a signed release from the employee authorizing the communication, and otherwise in compliance with applicable laws.

Investigation Learnings

Closely Monitor Back-to-Work Decisions to Ensure no Employee is returned to Work without specific approval of all

appropriate experts Employees who have been required to stay out of work

for security or medically-related issues should not be released to return to work without the assessment and approval of all Team members handling the case (e.g., Medical, HR, Legal, Security)

Ensure everyone involved in or aware of the investigation understands Company’s policy against retaliation of anyone who brings a complaint in good faith, or participates in an investigation.

Retaliation = Discipline

Investigation Learnings

Do not talk with, or communicate with any attorney who does not represent your company

Refer all inquiries from attorneys or the court, no matter how seemingly innocuous, to the Legal Department.

Only communicate with attorneys who represent your company

Investigation Learnings

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Always conduct an exit interview for the employees leaving the Company for any reason.

Involve the Legal Department in this process if the employee has had access to sensitive or proprietary information.

Separating Employees Following the Conclusion of an Investigation

Investigation Learnings

Retrieve all company property, including, but not limited to: computer, diskettes, credit cards, company keys, files, documents, pro cards

Separating Employees Following the Conclusion of an Investigation

Investigation Learnings

Please refer to the Exit Interview Process on the HR Web site.

THANK YOU!