conducting lawful investigations: the - washington...

1

Conducting Lawful Investigations:Just The Facts

2015 Washington State Employment Law & HR Conference

March 27, 2015

Deidra A. Nguyen, Esq.(206) 381-4931

[email protected]

James G. Zissler, Esq.(206) 381-4909

[email protected]

Today’s Agenda

• Introduction and Overview

• Employee Complaint: First Steps

• Conducting Effective Interviews

• Documentation Do’s and Don’ts

• Reaching a Conclusion

2

The Increasing Importance of Employment Investigations

Supports a Good Workplace Climate

Provides a Defense To Legal Claims

Employer’s Duty

• To take immediate corrective action by doing whatever is needed to end workplace misconduct and to prevent it from recurring.

• 9th Circuit: Remedies should be “reasonably calculated to end the harassment,” and “assessed proportionately to the seriousness of the offense.”

A “Good” Investigation Defined:

• Backed By Policy With Complaint Procedure

• Trained Professional to Receive Complaint

• Timely Investigation

• Interview Witnesses

• Speak With Subject of Complaint

• Interviews Documented

• Documents Collected & Secured

3

The Investigation Process: An Overview

Organize File

Complainant Interviewed

Decision Implemented

Follow Up

Decision Reached

Analysis of Data

Documents Reviewed*

Subject of Investigation Interviewed*

Re‐interviews

Report Prepared

Witnesses Interviewed

Complaint Made/

Received

Your Role As An Investigator

•No biases

•Good listener

•Appropriate investigation

•Attention to detail

•Reach reasonable conclusions

•Properly document investigation

•If appropriate, recommend remedy

Employee Complaint: First Steps

What is being alleged?

4


• Get info• Listen • Ask• Evaluate


• Emphasize complaint will be taken seriously

• Advise as to next steps• Confidentiality• Non‐retaliation•Most Important: Ask, “Is there anything else?”

Employee Complaint: Asking the Right Questions

•Open ended phase

•Clarification phase

•Pinning down phase (i.e., closing the door)

Use “Funneled” Questioning

5

Arnie

Rate the Investigator

• Get the details

• Impartiality

• Open‐ended questions

• Evaluate from the complainant’s perspective


• Advise the complainant about next steps

• Confidentiality

• Non‐retaliation

• “Is there anything else?”

Planning the Investigation: The Steps

Laws andpolicies

The specificallegations

Interviews

Documents

Other

Identify the

issues

Select the

means

Then

6

Planning the Investigation: Document Review

• Personnel files

• Timecards

•Medical files

• Expense files

• Project files

• Documents in possession of the claimant and witnesses

Planning the Investigation: Electronic Data & Communications

• Computer disks

• E‐mail

• Archived e‐mail

• Cameras/videos

• Recordings

• Internet searches

• Voicemail

Rate the Investigator

• Get the details

• Impartiality

• Open‐ended questions

• Evaluate from the complainant’s perspective


• Advise the complainant about next steps

• Confidentiality

• Non‐retaliation

• “Is there anything else?”

7

Identify Your Witnesses

• Individuals named by complainant

• Individuals named by other witnesses

• Individuals whose names appear in relevant documents

• Complainant’s supervisor

Conducting Effective Interviews

Interview Outline• Interviewee name/title/position

• Date, time and location of interview

• Date and location of incident

• Physical proximity of interviewee to the incident

• Persons Involved in incident

• Background of interviewee with the parties

• Names/relationships of other essential witnesses

• Understanding as to complainant’s concerns/allegations

• Awareness of facts, documents or persons related to allegations

Interviewing The Subject of the Investigation

Two Goals:

• Information gathering

• Fair opportunity to respond

8

Interviewing the Subject of the Investigation

• Weingarten rights?

• Garrity rights?

• Conduct in private

• Inform employee of allegations

• Ask for response

• Document the interview

• Warn against retaliation

Interviewing: Confidentiality

How Confidential Is An Investigation?

Attorney‐Client Privilege

Sensitive Matters

• What about “demand” for attorney?

• Remove subject of investigation from workplace?

• What about taping?

• What if someone refuses an interview?

• Privacy of subject of investigation/others

9

Documenting: Objectives

•Identify allegations

•Identify governing policies

•Record facts

•Record process

•Record reasoning

•Use neutral, objective language

Documenting: Basics

• State facts, not conclusions of law

Avoid opinions, rumors, or hearsay

Include dates, times, and witnesses as applicable

Use quotes properly

• Write for posterity (or the jury)

Post‐Interview

•Document the non‐verbal•Obtain employee’s signature where appropriate

•Provide opportunity for review and corrections•Maintain document control •File in investigation file

10

What not to Include

•Subjective information‐ Back up with specifics

•Personal opinions•Legal conclusions •Hearsay, gossip, rumors •Information about a medical condition

•EEO status•References to prior irrelevant matters or unrelated history

How To Document

Bad:

• Pat excluded Maria based on her gender.

Good:

• Maria applied for the upgraded position on (date).

•Four others applied for that same position (names and genders) .

•Maria was not offered the position (reason if documented).

•Maria was informed she had not received the position on (date).

•On (date) Maria left a voice mail on the company hotline stating the following: “(quote)”.

How To Document

Bad:

• Don said Maria was upset by Pat’s rude behavior.

Good:

•Don heard Pat tell Maria in a loud voice, “You don’t belong in a man’s job and should be home taking care of your husband and family.”

•Within a few minutes of hearing this comment, Don saw Maria begin to cry and leave the room.

11

How To Document

Bad:

• Pat did not engage in discrimination

Good:

• Pat’s decision to hire Oscar was based on the following qualifications of Oscar : [list]

• These qualifications were essential to the position in question [state reasons] and exceeded the job‐related qualifications of other candidates, including Maria.

A Final Note About Your Notes

• Drafts/final?

• Handwritten/typed?

• Name and date

• Separate file

• Include report

• Include evidence

Making Credibility Determinations

• Memory • Demeanor• Corroboration• Bias• “Pretaliation”

12

Documenting Credibility Determinations

•Do not document credibility conclusions

•“Mary’s Lying” or “Mary’s biased...”

•Instead, document facts

•“Mary gave inconsistent information as follows … ” or “Mary and Carl both admitted to having a relationship outside the office...”

Factual Findings:

A short factual finding on each allegation with reasons

• Incident likely occurred as alleged.

• Incident likely did not occur as alleged.

• Unable to determine whether incident occurred as alleged.

Documenting Factual Findings

Sample Findings: Allegations Substantiated

Allegation No. 1: ____________

We conclude that this allegation occurred essentially as employee Smith alleged. Supervisor Doe admits he made physical contact, including an attempted kiss, with employee Smith in the hallway while attending a company function on the evening of February 1, 2012. Supervisor Doe also acknowledged referencing employee Smith on numerous occasions by the nickname “____.” Co‐employees Richards and Sedwick each provided separate and consistent accounts that they had observed Supervisor Doe using the nickname “______” in reference to employee Smith on multiple occasions in February 2015.

13

Sample Findings: Allegations Unsubstantiated


We conclude that this incident probably did not occur. We base this on the fact that there was no other person in the department who observed the behavior reported, even though many were there at the time. Supervisor Doe credibly denied the allegation. Mr. Doe’s documentation of the event, submitted at the time, appears to be a reliable description of what occurred and there is no evidence, other than employee Smith’s account, that conflicts with it.

Sample Findings: Inconclusive


“We are unable to determine with reasonable certainty that this event occurred as alleged. There were no witnesses except for the parties themselves, and no corroborating evidence of any kind. Both witnesses seemed sincere and credible. No documents or other evidence exists to corroborate either party’s claims. There is no record in the past to suggest that any event like this had occurred at any other time.”

Final Steps

•If appropriate, recommend discipline

•Consider consistency with other cases

•Discipline the right people

•Take other remedial and preventive measures

•Document what has been done

14

Factors to Consider

• Was there a good faith conclusion that the conduct occurred as alleged?

• If so, what was the nature, severity and pervasiveness of the conduct?

• The subject’s employment history, including length of employment and other discipline, if any.

• The type of notice the subject of the investigation had of the policy.

• The discipline imposed for other similar policy violations (remember to be consistent).

Post‐Investigation

•Follow up with complainant in reasonable time

Legal NoticeLittler Learning is in the business of providing employment law training through the sale of training and education products, computer‐based training and education applications and live‐training and educational services. The Learning Group is not in the business of providing legal advice or legal services, and the protections of the lawyer‐client relationship do not exist with respect to the training services provided by the Learning Group to your company. The information and materials provided by the Learning Group are designed to be authoritative in regard to the subject matter of the training without implied warranties. We strongly encourage you to consult legal counsel of your choice on specific matters involving employment law, and important personnel policies and practices prior to adoption or implementation.

CreditsAll material presented and provided by the Littler Learning Group is a product of the Learning Group that owns or has licensed all proprietary rights in the training materials. Services and training materials are provided for the exclusive, internal use of the organization and may not be sold, copied, given away, re‐distributed, or used for any other purposes other than those expressly allowed for by Littler Learning Group.