diane olsen, employee relations april 2014 effective workplace investigations for hr business...

Diane Olsen, Employee Relations April 2014 Effective Workplace Investigations for HR Business Partners JDSU Confidential - Do Not Forward Outside Company

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 2 Agenda Overview 10 Steps to a Successful Investigation Resources Q&A

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 3 Determine what happened Stop problems quickly Reinforce company policies, including our commitment to maintain a respectful, harassment-free environment Encourage reporting of complaints Restore productive and healthy work environment Protect the company from legal exposure Desired Outcomes of a Effective Investigation

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 4 Discovering Workplace Problems Workplace problems may surface as: Formal complaints Anonymous complaints Reports by managers and supervisors Indirect complaints Information from departing workers Workplace observations Third party reports Complaints raised directly can appear: In person, via email, exit meetings, Ethics Hotline, etc. Complaints raised indirectly can appear: Anonymous letters, survey feedback, rumors, attorneys*, government agencies*, co-worker observations, Ethics Hotline, etc. * Please notify ER and/or your regional Senior HRBP immediately if you are notified of a complaint (by mail or phone) by an attorney or government agency

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 5 Discovering Workplace Problems, continued Potential sources of complaints include: Current and former employees Non-JDSU workers (temps, independent contractors) Vendors Customers Job candidates Visitors Anonymous parties Family members

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 6 Obligations of Employees Although the situation triggering an investigation can surface in various ways, our obligation to investigate doesnt depend upon on how the problem is raised We generally have a practical and legal obligation to take appropriate action regarding complaints, and A duty to investigate before taking action, if necessary Global policies that reinforce our duty to investigate include: Code of Business Conduct (CoBC) Equal Employment Opportunity Unlawful Harassment Including Sexual Harassment Communications and Resolution of Differences (Open Door)

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 7 Code of Business Conduct (CoBC): Maintaining the highest ethical standards is the responsibility of every member of the JDSU community Anyone with a concern regarding a possible ethics or legal violation should contact a manager or supervisor, HR representative, or any member of the internal audit (IA) or legal teams In addition, all employees are required to cooperate fully with any authorized internal or external investigations Managers/supervisors, HR, IA, & Legal are held to a higher standard Required to report potential ethics or compliance related complaints, whether or not the complaint is within the organization or reporting chain Never ignore a complaint brought to your attention, and Never discourage anyone from reporting a complaint or concern Obligations of Employees, continued

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 8 Confidentiality We must protect the confidentiality of employee complaints to the best of our ability. At the same time, we need to conduct a prompt and effective investigation. Therefore, it may not be possible to keep all information gathered (evidence, research and notes) completely confidential. Explain to the complaining party and all individuals involved in the investigation that information gathered will remain confidential to the extent possible, and as required by country laws, to conduct a thorough investigation In order to conduct a prompt and effective investigation, some information may need to be revealed to the alleged wrongdoer and potential witnesses, but that information will be shared on a strict need to know basis Inform investigation participants that the investigation is to be kept confidential and not discussed with other employees* Important note regarding U.S. complaints, we cannot require participants to keep an investigation confidential as discussing an investigation could be considered protected concerted activity under the NLRA (National Labor Relations Act). However, we can request they maintain confidentiality to enable a thorough and efficient investigation, reduce distractions, etc. *

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 9 Confidentiality, continued What if a complainant asks you not to share their serious concerns and/or not to investigate (keep it between us, do nothing, or keep it off the record)? Never promise/guarantee; honoring this request could place other employees at risk Doing nothing places the company at risk for liability due to failure to investigate and/or failure to take prompt remedial action Once we are on notice of an alleged serious incident (for example, harassment) the employer is obligated to investigate despite the complainant's request not to take action Advise the complainant that you must act on the complaint but will proceed as confidentially as possible Ask the complainant to share their concerns about an investigation Is it necessary to advise others about the complaint? Typically, the accused party will be advised that a complaint has been made against him/her; however, the timing and content of these conversations should be planned and vetted in advance It may not be necessary or prudent to immediately notify the alleged wrongdoer that a complaint has been raised; the same applies to the complainant's manager

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 10 Employees are protected against retaliation for submitting a good faith complaint and for participating in a workplace investigation Retaliation can create independent legal liability for the company even if no wrongful conduct regarding the original complaint is found Recognize every complaint has the potential to turn into a retaliation claim Take steps to protect all investigation participants from potential retaliation Advise the complainant that if the accused party or anyone else takes any action that s/he believes is retaliation, s/he should report it immediately Stress to the accused party that no negative action (or appearance of negative action) may be taken against the complainant, or anyone participating in the investigation Advise all witnesses that participation in the investigation will not have negative repercussions --- and make sure that it doesnt. Advise them to report to you immediately anything that appears to be retaliation The HRBP investigator and manager need to monitor the situation to ensure no retaliation occurs Retaliation

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 12 10 Steps to a Successful Investigation Get Started 1.Determine if an investigation is needed 2.Provide interim relief, as necessary 3.Select an investigator Gather Information 4.Plan the investigation 5.Conduct interviews 6.Gather documents and other evidence Make and Document your Decision 7.Evaluate the evidence 8.Take action 9.Document the investigation 10.Follow up

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 14 All complaints require a response; however, not all complaints require an investigation. To decide whether you should investigate, consider: Is there is a dispute over what happened? If those involved agree on the essential facts, you may be able to focus on problem resolution; if there are disagreements, an investigation will help clarify what happened How serious is the alleged misconduct? What is the nature of the complaint? With serious complaints (for example, CoBC violation, harassment, discrimination, retaliation), the company is on notice. We have a duty to conduct a good faith investigation, and failing to investigate can lead to legal exposure and costly ramifications. Are we legally required to investigate? Certain laws specify that employers are legally obligated to investigate complaints Whats the potential scope of the complaint? Large scale complaints (multiple employees, departments, and/or geographies, long period of time) can have a highly negative impact on the workplace (loss of productivity, impact on morale, loss of talent, damage to company reputation). Step 1: Determine if an Investigation is Needed

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 15 How have similar complaints been handled? If company practice shows we generally investigate the same or similar problems, act consistently and investigate If legal issues arise later, youll want to show that you were fair and consistent, and that you treated complaints with equal concern When in doubt, err on the side of investigating If the decision is made to investigate, start promptly after the problem is discovered or reported. This demonstrates the Company is serious about addressing complaints The longer we wait to address an issue, the worse it may become and opportunities for learning and correction may be lost If you have a good reason for waiting, put it in writing Step 1: Determine if an Investigation is Needed, continued Dont prejudge the authenticity of a complaint due to any persons previous or related complaints, complainant or alleged wrongdoer behavior or history, complaint patterns at certain sites or departments, etc.

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 16 If a situation is disruptive or emotionally charged, or potentially impacts the health and safety of employees or the business (for example, assault, bringing weapons to work) you may need to take interim action before the investigation starts, or before the investigation is complete. Interim relief can help maintain the integrity and timeliness of the investigation by reducing distractions/interference Examples of interim relief include temporary transfer (change in shift, manager, building, etc.), reassignment, working from home, paid* leave/suspension, however Complainants should not be involuntarily transferred or burdened in a way that could appear to be retaliatory (and may result in a retaliation complaint). The employer and the complainant should work together to arrive at a reasonable solution Consider interim relief for the complainant, alleged wrongdoer, and/or witnesses; separating the alleged victim from the accused may be necessary to guard against actual / perceived retaliation Anticipate potential retaliation claims from any impacted parties and be able to justify interim actions accordingly Contact ER with issues regarding actual/potential workplace violence so appropriate assessments can begin immediately *Avoid unpaid leave/suspensions during the investigation for practical and legal reasons Step 2: Provide Interim Relief, as necessary

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 17 Step 3: Select an Investigator The role of investigator is crucial in conducting an effective workplace investigation Requirements of an HR investigator Experienced and/or well trained in investigations Knowledge of company policies, practices, and employment laws Credible and approachable; objective and without personal bias; perceived as neutral and fair by complainant Respected within the organization, as conclusions will be used to make a determination Ability to serve as a key professional witness in case of escalation or litigation The investigator is typically the organization HRBP; however, alternative approaches may be appropriate Engage HRBP from different organization as investigator if complainant or the accused perceives HRBP as having a bias or a role in the complaint Coordinate use of multiple interviewers if time or scope requires this, or if you want to include a witness to confirm statements or events, take notes, etc. ER will sometimes assume ownership of an investigation, due to sensitivity or nature of complaint Contact ER before proceeding if you have any questions or concerns

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 19 Staying well organized is critical as investigations can be complex (conflicting allegations and supporting facts, numerous witnesses with different accounts of what happened, identifying and sorting through multiple documents, establishing clear timeline, etc.) Utilize the investigation processes, tools and templates that the Company has established (HR Investigation Toolkit: Investigation Considerations, and if applicable, Fact Finding Checklist for Harassment Investigations). Not using these tools increases the risk that your approach will not be thorough and/or consistent with established practices Review the investigation plan periodically; amend as needed Always feel free to discuss your plan with ER Step 4: Plan the Investigation

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 20 Elements of your investigation plan should include: Goals and purpose for the investigation Applicable JDSU policies, guidelines and/or applicable laws Decision makers and stakeholders Approach to interviewing Who will be interviewed, and in what order Where, how and when interviews will take place (on-site, by phone, off-site) Select locations that are secure, private, and comfortable; ensure seats are arranged so that interviewee may leave without being blocked (avoid false imprisonment allegations); anticipate safety concerns and engage Security as appropriate Prepare an outline of questions for each interview Anticipate length of interview, including breaks and time to summarize notes / observations Be prepared to explain the nature of the investigation (in general for witnesses; in more detail for the subject(s) of the investigation) Anticipate questions that may be asked of you Determine what documents need to be reviewed (personnel file, email*, memos, etc.) Establish a method to secure your files, notes and/or records Step 4: Plan the Investigation, continued *Contact ER if email evidence is required; keep in mind email maximum retention periods

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 21 General interviewing techniques Be mindful of what you say in every interview (for example, withhold speculation and personal opinions, do not make negative comments about current or former employees) Obtain the facts (who, what, when, where, why, how ) using open-ended questions, then ask specific questions as required Avoid leading and compound questions Be considerate; ask interviewees to let you know if they need a break, water, etc. If participant avoids answering a question, go back to that question again, or ask why they do not or cannot answer the question Start with the easy questions; ask embarrassing or unfriendly questions at the end Interview one person at a time, even if witnesses ask to meet with you as a group Do not allow interviewee to bring an attorney, or (in general) another party to the interview; contact ER for specific guidance Do not use strong arm or intimidating interview tactics (for example, if an employee wants to end the interview, let them leave) Complete your notes after each interview Objectively observe and record the interviewees demeanor/behavior (eye contact, fidgeting) Note any inconsistent or conflicting statements, or admissions/denials Capture relevant statements in quotes, when possible Assess the plausibility of any explanations provided Step 5: Conduct Interviews

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 22 Content of investigative interviews Inform each interviewee of the process and roles Your role as investigator is to gather information; explain that you will be taking notes Interviewees role is to provide investigator with knowledge and documentation regarding the incident, and suggestions regarding other potential witnesses Stress that no conclusions have been reached Ask interviewee to clarify their responses, as needed (for example, vague or general answers, unsure of a participants meaning, names, timeframes, etc.) Before ending the interview, ask, Is there anything else that is important for me to know? and Is there anyone else who witnessed or experienced this incident/behavior? Ask each person to provide you with any relevant documentation (email, etc.) Set expectations regarding confidentiality; stress that retaliation is not tolerated Close with an open-ended invitation for the interviewee to contact you if they remember anything later, or to provide you with additional information that they believe is relevant (documents, statements, witnesses, etc.) If needed, re-interview later (for example, conflicting or unclear information, or if additional information is brought forward that should be investigated) Step 5: Conduct Interviews, continued

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 23 Some statements and questions will apply only to the complainant and the accused Interview with the complainant Ask if the complainant believes you can conduct a fair and impartial investigation Ask the complainant what they would like to see happen as an outcome Interview with the accused party State that they are the subject of an investigation, and share the nature of the complaint Explain that no decision has been made at this time If there is resistance to answering questions, explain: Your obligation to investigate Your conclusion will be based upon information obtained Unwillingness to cooperate will be a factor in your determination If alleged misconduct is denied, explore possible motives for the accusations. Ask: Do you have any idea why s/he would make these allegations? Are there any past conflicts or problems with the complainant? Why do you think the complainant would make the accusations? Is there any documentation that would support the alleged wrongdoers position? Are there any witnesses that the accused believes should be interviewed? Step 5: Conduct Interviews, continued

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 24 Documentation can play a huge or a supporting role in the investigation Gather documentation from involved parties, plus all additional evidence found during the investigation: Interview notes and observations Documents provided by complainant, interviewees, alleged wrongdoer Company policies and procedures Emails, documented instant messages, correspondence Performance reviews Disciplinary records; documentation of verbal warnings, written warnings, CAPs Calendar entries and notes, diaries Attendance records, work schedules, badge (building access) reports Payroll and timecard records Applications, resumes, work samples Customer or co-worker complaints Expense reports Postings to company bulletin boards Step 6: Gather Documents and other Evidence

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 26 Review all evidence and interview notes Are there facts to which everyone agrees? Consider grouping evidence into two categories: disputed and undisputed facts What are the major disputes/points of contention? Regarding each dispute, what did witnesses state? Does documentation support allegations, witness statements, denials? Assessing credibility (complainant, accused, witnesses) Plausibility: what makes the most sense? Are there prior incidents or a history of misconduct? How general or specific was each persons statements? Corroboration and conflicting testimony: do witnesses or documents support one side of the story? Does the evidence contradict statements from interviews? Demeanor: how did the witnesses act during interviews? Omissions: did anyone leave out important information? Is there a sensible reason for any omissions? Consider the source of the information (firsthand or secondhand knowledge?) Motive: does any person have a motive to lie about, exaggerate, or deny the incident? Are there loyalties that may impact witness statements? Step 7: Evaluate the Evidence

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 27 Dont rush towards a conclusion; re-check as necessary Consider getting a 2nd opinion; have an objective party (ER, senior HR manager or senior line manager) review your investigation and conclusions reached Make a determination 1.No misconduct occurred 2.Results are inconclusive 3.Misconduct occurred Before recommending an action plan, consider severity, consistency, company policy, employee history, knowledge that behavior was misconduct, and strength of evidence Provide your recommendation to management and/or stakeholders Demonstrate conclusion was reached in good faith, based on facts (not opinions), and that you followed established investigation processes Work with decision makers to plan remedial actions Step 7: Evaluate the Evidence, continued

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 28 Follow up with the complainant, accused party, and witnesses (where applicable) to close the investigation; prepare and deliver conclusion notification documents in a timely manner, even if there was no finding of misconduct Share actions taken on a business need-to-know basis; some outcomes will be obvious (termination or reassignment), others are more subtle (coaching, training) so reassure complainant that appropriate action was taken Corrective actions may include verbal coaching, training, communication, written warning, transfer, corrective action plan (CAP), termination, revising or creating new policies or processes Any corrective action needs to be tailored to the specific situation; however, contact your senior HR manager and/or ER for past practice Document actions as appropriate; use Corrective Action templates If applicable, establish a change management plan. As with any unplanned termination, transfer, reassignment determine what's appropriate to communicate without divulging personal/private information. Conduct 1:1s, group meetings, etc., per your plan Contain speculation; enable people to get back to work Step 8: Take Action

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 29 Summarizing the investigation and keeping supporting documents intact are critical steps to protect the company if the investigation is challenged in the future Lost notes or undocumented investigations make it difficult to prove we took the complaint seriously, and conducted a timely and thorough investigation Undocumented statements can become fuzzy or disappear from memory; participants may not be available later due to attrition, etc. Prepare all documentation in anticipation of litigation. Be factual, accurate and clear; do not overstate or include your opinion Do not dispose of any documents without speaking to ER or an attorney Use JDSU investigation templates Comprehensive and legally approved Ensures consistent treatment of complaints Creates risk if investigative processes NOT used when established by the Company Increases confidence in the process, enables you to focus your energy on the investigation, saves countless hours Step 9: Document the Investigation

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 30 Your investigation documentation and file should include: The written complaint or your notes from meeting with the complainant All interview notes and interview process, including who was interviewed, who conducted interviews, date/location of interviews, etc. Copies of all relevant documents, policies, or other evidence Investigation summary - even if results are inconclusive; send copy to ER Any follow up actions (corrective action plans, training, changes in process/policy, etc.) Conclusion documents for all involved parties, as appropriate If corrective action was taken against an employee, the employees file should include a notice of the discipline imposed or termination reason, as applicable. The HRBP must ensure that signed corrective action documents are sent to HRD and added to employees personnel file. Keep your investigation file in a secured location, and transfer the file to ER or new HRBP if you change jobs Remember that all documents are discoverable; write as if your documentation will become exhibits at trial Include investigation info and results in the quarterly ethics report to ER Step 9: Document the Investigation, continued

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 31 Check back periodically with involved parties, as appropriate, after the investigation is closed Determine if additional action is needed (for example, training, communication, process reviews) Follow through on action commitments as outlined in the investigation results summary. Check in with manager and other responsible parties to ensure they are following up on actions assigned to them Continue to respect confidentiality; do not share investigation information with anyone without a business need-to-know Remind employees to report additional workplace concerns to HR or management; ensure employees know that retaliation is not tolerated Monitor future Employee Engagement results for trends or comments that may indicate if issues were fully addressed, and/or if issues resurface, as well as comments regarding retribution Step 10: Follow up

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 33 Resources: the Investigations Toolkit

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 34 Resources: the Investigations Toolkit, continued

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 35 Investigation Considerations provides detailed guidance, including: Planning the investigation The initial conversation with complainant Being prepared for the unexpected Interviews Complainant Alleged wrongdoer Witnesses Investigation notes Analysis of findings Implementation Follow-up Resources: the Investigations Toolkit, continued

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 36 Use the Fact Finding Checklist for Harassment Investigations in conjunction with Investigation Considerations. Note: also applicable for non-sexual harassment claims, including harassment due to age, race, disability, national origin, sexual orientation, etc. Identifying types of misconduct Physical Verbal Visual Dates and times Frequency of occurrences Establishing context Effect on the complainant Relationship of the parties Employer knowledge of harassment Corroborating evidence Resources: the Investigations Toolkit, continued

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 38 Excerpt from JDSU to Complainant Issue Confirmation Letter Note statements re: Expectations, Confidentiality, and Retaliation

2013 JDS Uniphase Corporation | JDSU CONFIDENTIAL AND PROPRIETARY INFORMATION 40 Your Employee Relations / HR4HR Team: Contact us regarding the following case types: Harassment Discrimination Retaliation Substance abuse Other unlawful conduct Workplace violence including TROs (temporary restraining orders) that include the workplace Or if youd like a sounding board during any investigation Resources Diane OlsenMaureen Higgins