solving the mystery behind conducting a “flawless” workplace investigation - an hr attorney’s...

Solving the Mystery Behind Conducting a

“Flawless” Workplace Investigation -

An HR Attorney’s Perspective

Jessica T. Walberg, Esquire407-418-2300

[email protected]

Search for the “Flawless” Investigation

• What constitutes a complaint?• Do I have a duty to investigate?• Who should conduct the investigation?• How should the investigation be done?• Should an investigative report be prepared?• Are there common mistakes to avoid?• How much coffee have you had?• Will you answer all of my questions & not

bill me?

What Constitutes a Complaint?


• Written or verbal communication from employee “specifically” complaining of discrimination, harassment or other objectionable conduct

• Employee verbally states he/she has “generally” been treated badly or unfairly

• Supervisor/manager reports that inappropriate acts or misconduct have occurred

• Complaints submitted through published policy• EEOC / FCHR Charge of Discrimination / Lawsuit


• Subtle statements about workplace or supervisor

• Offhand comment from employee directly to or overheard by supervisor about inappropriate conduct that has occurred in workplace

• Comments made outside of workplace between “friends” (“just between us”, “off the record”)

Duty to Investigate

Duty to Investigate

• Federal & state harassment/discrimination/safety laws impose legal duty on employer to investigate employee-related complaints (defenses & mitigation)

• Can include off-duty conduct• “For Cause” terminations (in employment contracts

or CBAs) require fair & thorough investigations• Obligations to shareholders may impose duty to

investigate claims to determine or limit potential liability

• “Right Thing To Do” - provide safe work environment (“happy employees are productive employees, productive employees are profitable employees!”)

Selecting the Investigator


• Ability to understand business purpose of investigation & potential issues it may raise

• Knowledge of policies & practices• Knowledge of applicable legal issues• Ability to take thorough, accurate notes

which can be used as evidence• “Communication fit” with personalities &

backgrounds of potential witnesses • Comfort level for witnesses (consider if

race, age, etc. will make a difference for potential witnesses)


• Interviewing skills, including the ability to identify follow-up questions when new facts or issues arise during interviews

• Ability to determine when & when not to maintain confidentiality

• Ability to determine credibility of witnesses

• Experienced conducting investigations• Consider cost


• Manager or supervisor• HR professional (“perfect witness”)• Private investigator or outside

consultant• In-house counsel• Outside counsel

Conducting the Investigation

Conducting the Investigation - Strategy

• Determine if Interim Actions Should be Taken- Temporary transfers of shift or

reporting changes- Place accused on leave- Changes for the complainant should be

voluntary- Remind everyone that retaliation is

prohibited


• Start investigation promptly- Ellerth and Faragher defenses – prompt,

remedial action

• Outline scope & breadth of investigation• Prepare a timeline, include each step that

will be taken & expected completion date• Recognize that chronology & order of

interviews can either contaminate or enhance success of investigation


• Prepare an outline of critical issues:- Ensures all issues regarding each

witness will be addressed- Ensures a thorough & consistent

line of questioning- Allows investigator to compare

similarly situated witnesses from a standardized approach

Conducting the Investigation - Documents

• Rules, policies, & procedures• Personnel files (named individuals &

“comparators”)• Memoranda or notes about incident• Complaints (internal or external)• Videotape (security)• E-mail, Internet, Blogs, Facebook, etc.• Other potential information sources

Conducting the Investigation - Interviews

• Order of Interviews- In typical harassment situation

• Complainant•Harasser•Witnesses• Complainant

- In discipline cases for workplace violations• Employee who violated the workplace rule or

policy•Witnesses


• Location is Important- Cubicles and open offices are not

sufficient- Quiet, private room is appropriate

• Ground Rules- Company meeting- Expect/require honesty, candor- Lying or failure to cooperate equals

independent grounds for discipline


• Ground Rules Cont’d - OK for union to participate to ask

questions or clarify – but expect employee to answer

- Will break at end and give union and employee time to speak privately – come back and add anything at that time

• Make appropriate disclosures (e.g., who you are, who you represent, why you are there, etc.)


• Disclose nature & purpose of investigation at beginning- Be candid when interviewing person

who is focus of investigation- Explain to witness that company takes

complaints seriously

• Do not promise confidentiality!


• Stress voluntary nature of participation- Make clear employee may terminate

discussion at any time

• No retaliation • Advise that no judgments have been

made about any aspect of investigation, including validity of complaint

• Just the Facts!


• Begin with open-ended questions (“Funnel Approach”)

• Transition to specific situation at issue• Give witness opportunity to provide

additional information• Probe witness with follow-up questions, &

ask about knowledge of any relationships between complainant & alleged wrong-doer or possible motivations for complaint or conduct at issue


• Inquire if witness is hostile/friendly to either complainant or alleged wrong-doer

• Ask witness if he/she is aware of any others who might have relevant information or evidence (witnesses)

• Ask witnesses for additional information & evidence (photos, e-mails, calendar entries, & other evidence)


• Be an active listener & critical thinker- “Does this make sense?”- “Do I understand exactly what

happened?”- “Will the person reading my report

understand exactly what happened?”

• Use your time line to identify discrepancies between witness’ own story & that of others - challenge facts


• Clarify basis for witness’ knowledge of a “fact”- How do they know?

•Saw it? Heard it? Was involved in it?

- Distinguish between “no” & “I cannot recall.”

- Document carefully for later review - generally don’t tape record interviews (witnesses are less forthcoming)


• Prepare formal witness statements or take notes, as close to verbatim as possible, of facts recounted to investigation & provide witness with written statement of his/her interview to verify accuracy & make any necessary changes- Witness should sign & date statement- If this is not possible or practical, confirm

accuracy of notes & obtain initials

Conducting the Investigation - Interviews Specific to Harassment

Complaints• Was conduct welcomed?• Does alleged action have purpose

or effect of creating a hostile, offensive or intimidating environment?

• Is it sufficiently “severe or pervasive” to alter conditions of alleged victim’s employment?

Conducting the Investigation - Interviews Specific to Harassment

Complaints• How often did alleged action occur?• How severe was alleged action?• Was alleged action physically threatening

or humiliating?• Describe in detail (don’t accept “dirty talk”

or “inappropriate language or conduct”)• Does alleged action unreasonably interfere

with victim’s work performance? - Reasonable person standard (a jury of your

employee’s peers)

Conducting the Investigation - Interviews (Credibility)

• Demeanor - Body language- How did witness react to allegations?- Did witness appear credible overall?

• Logic/consistency- How much detail did witness offer? - Did events differ from others interviewed? - Did witness’ version make sense?

• Is there corroborating evidence?


(Recording/Transcribing Interviews)• Witness may be uncomfortable & less

forthcoming• Florida law requires informed consent of

witness• Once recorder is on, state date, time & place

of interview, name of participants and have witness confirm on tape his/her knowledge of & consent of the recording

• Repeat & re-verify consent at conclusion of interview

Conducting the Investigation - Interview Problems

• Remind them of obligation to cooperate• Assure them of obligations of

confidentiality/non-retaliation• Confirm that company can take action

based only on information it is able to obtain during investigation

• Interviewer’s notes should confirm refusal to cooperate & that disclosures were made to confirm consequences of refusal to cooperate

Conducting the Investigation - Concluding Interviews

• Conclude interview- Repeat significant points & ask interviewee to

confirm information is complete & accurate- Give witnesses opportunity to disclose

anything else he/she thinks might be important

- Cover expectations of confidentiality- Invite witness to contact you if he/she recalls

or discovers any additional helpful information after interview concludes

- Explain who should be contacted if employee receives threats or reprimands for participating in investigation

Preparing the Investigative Report


• Review and finalize notes immediately upon completion of investigation – while its fresh

• Write as though every word will be second-guessed (opposing counsel, judge, &jury)

• Prepare summary of facts• Include facts, not speculation or hearsay•Where there are discrepancies, give all

versions• Take appropriate action to address

conclusions• Factual findings (possibly recommendations)


• Reach a conclusion•Who do you believe & why

• Examine objective facts and assess credibility of interviewees- There was a violation- There was not a violation- You cannot make a determination


• Include background of complaint• Summarize witnesses’ statements: evaluate

their credibility (based on facts)• Make factual findings (vs. legal conclusions)• Mark “confidential” - maintain privileges• Recommend appropriate action, if charged with

doing so- Direct to Counsel/Senior Management

• Prepare final report in anticipation of discovery


• Were policies, guidelines, practices violated? If so, was violation serious or minor?

• What has been done in the past with regard to similar violations (consistency)?

• Are there mitigating or aggravating circumstances?

• Creative alternatives?

Preparing the Investigative Report – There was a Violation….

• What is appropriate discipline?- Disciplinary counseling- Transfer- Suspension- Last Chance Agreement- Demotion - Discharge

Preparing the Investigative Report – There was Not a Violation…

• Make sure the complainant will not be retaliated against for raising a concern

• Make sure that the alleged wrongdoer is not treated differently as a result of the investigation

Preparing the Investigative Report – The Results are Inconclusive

• Continue to monitor the situation• Consider possible reassignment• Consider implementing additional

workplace training on the issue• Maintain investigation file• Let parties know of results• No retaliation

Preparing the Investigative Report – Possible Conclusions of Report

• There is no evidence to corroborate the complaint

• There is no evidence to establish a violation of Company policy

• The evidence corroborates the complaint, but does not establish a violation of law or Company policy

• The evidence shows a violation of law and/or Company policy

Determining Appropriate Discipline

• Was a rule or policy clearly broken?• Was the employee on fair notice of rule

and consequences?• Has the employee been provided with a

fair chance to explain?• What has Company done in past –

consistency, consistency, consistency.• Is “progressive discipline” short of

discharge appropriate?

Determining Appropriate Discipline

• To what extent does the employee’s record warrant mitigation?

• Is there consensus about the level of discipline?

• 18 months down the road will you be able to look at a judge or arbitrator and say this was fair, appropriate discipline?

Preparing the Investigative Report – Communicating the Outcome

• Follow up with both complainant and accused

• Emphasize company’s commitment to policies and compliance with the law

• Typically not appropriate to inform other employees about the results of the investigation

Post-Investigation Measures

Take steps to ensure that no retaliation is taken

• Encourage complaining employee to bring all issues forward in future

• Continue monitoring situation – 30, 60, 90 day follow up

• Train managers/employees as needed

Common InvestigationMistakes to Avoid

Common Mistakes to Avoid While Conducting a Workplace

Investigation• Taking sides

- Investigator must remain neutral & conduct unbiased, objective investigation

- Applies equally whether empathizing with complaining employee or defending conduct of alleged wrong-doer


Investigation• Promising confidentiality

- Breach of contract- Must be sure to explain

confidentiality is qualified/limited- Treat as sensitive information -

share only with legitimate need-to-know


Investigation• Failing to Document

- “Minor” complaints often not documented- Relevant documents must be properly

dated & signed- Sanitize notes & report before finalizing- Be the “proud author!”- Keep records for three years – will not run

afoul of any laws as typically retention requirement is 3 years or shorter


Investigation• Failure to Actually Investigate

- Do not simply ask witnesses to provide you with a written account of what happened

- Important to have interactive interviews to assess credibility & immediately follow-up on issues raised

- Prevents employees from improperly inserting their own subjective opinions & potentially biased beliefs into process


Investigation• Failure to Make Conclusions

- “He said - she said” type case, easy to simply state that no conclusion can be reached

- Important to reach a conclusion based on best information available, credibility of witnesses, a determination of who is more likely to be telling the truth, etc.

- Okay to determine “inappropriate conduct” without concluding “unlawful harassment” occurred

Search for the “Flawless” Investigation

• What constitutes a complaint?• Do I have a duty to investigate?• Who should conduct the investigation?• How should the investigation be done?• Should an investigative report be prepared?• Are there common mistakes to avoid?• How much coffee have you had?• Will you answer all of my questions & not

bill me?

Solving the Mystery Behind Conducting a

"Flawless" Workplace Investigation -

An HR Attorney’s Perspective

Jessica T. Walberg, Esquire407-418-2300

[email protected]

solving the mystery behind conducting a “flawless” workplace investigation - an hr attorney’s...

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