Solving the Mystery Behind Conducting a

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Solving the Mystery Behind Conducting a
Flawless Workplace Investigation - An HR
Attorneys Perspective

• Jessica T. Walberg, Esquire
• 407-418-2300
• jwalberg_at_fordharrison.com

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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?

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What Constitutes a Complaint?
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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

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What Constitutes a Complaint?

• 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)

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Duty to Investigate
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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!)

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Selecting the Investigator
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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)

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Selecting the Investigator

• 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

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Selecting the Investigator

• Manager or supervisor
• HR professional (perfect witness)
• Private investigator or outside consultant
• In-house counsel
• Outside counsel

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Conducting the Investigation
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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

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Conducting the Investigation - Strategy

• 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

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Conducting the Investigation - Strategy

• 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

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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

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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

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Conducting the Investigation - Interviews

• 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

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Conducting the Investigation - Interviews

• Ground Rules Contd
• 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.)

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Conducting the Investigation - Interviews

• 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!

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Conducting the Investigation - Interviews

• 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!

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Conducting the Investigation - Interviews

• 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

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Conducting the Investigation - Interviews

• 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)

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Conducting the Investigation - Interviews

• 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

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Conducting the Investigation - Interviews

• 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
  dont tape record interviews (witnesses are less
  forthcoming)

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Conducting the Investigation - Interviews

• 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

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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 victims employment?

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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 (dont accept dirty talk or
  inappropriate language or conduct)
• Does alleged action unreasonably interfere with
  victims work performance?
• Reasonable person standard (a jury of your
  employees peers)

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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?

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Conducting the Investigation - Interviews
(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

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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
• Interviewers notes should confirm refusal to
  cooperate that disclosures were made to confirm
  consequences of refusal to cooperate

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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

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Preparing the Investigative Report
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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)

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Preparing the Investigative Report

• 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

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Preparing the Investigative Report

• 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

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Preparing the Investigative Report

• 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?

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Preparing the Investigative Report There was a
Violation.

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

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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

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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

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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

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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?

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Determining Appropriate Discipline

• To what extent does the employees 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?

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Preparing the Investigative Report
Communicating the Outcome

• Follow up with both complainant and accused
• Emphasize companys commitment to policies and
  compliance with the law
• Typically not appropriate to inform other
  employees about the results of the investigation

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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

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Common InvestigationMistakes to Avoid
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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

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Common Mistakes to Avoid While Conducting a
Workplace 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

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Common Mistakes to Avoid While Conducting a
Workplace 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

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Common Mistakes to Avoid While Conducting a
Workplace 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

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Common Mistakes to Avoid While Conducting a
Workplace 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

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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?

53
Solving the Mystery Behind Conducting a
"Flawless" Workplace Investigation - An HR
Attorneys Perspective

• Jessica T. Walberg, Esquire
• 407-418-2300
• jwalberg_at_fordharrison.com