CONDUCTING BULLETPROOF

INVESTIGATIONS

www.laborlawyers.com

Presented by:Merrily S. Archer, Esq., M.S.W.

marcher@laborlawyers.com

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Preparation, Preparation, Preparation

Anticipate charges and/or lawsuits Keep relevant records Ensure that your employee handbook complies with

all federal, state, and local laws Have a general strategy Communicate the warm “fuzzies” of caring and

concern Have an open door policy

Open Door Policies

To hear about (and resolve) complaints before the employee files a charge or hires an attorney

To mitigate liability if litigation ensues

To show that the employer is the “good guy”

To capitalize on a jury bias

Why Investigate?

Legal duty to investigate• Harassment claims• Negligent hiring and

entrustment

Good business practice

Basis to make informed employment decisions

Minimize liability

Types of Lawsuits

Harassment/Hostile EnvironmentRetaliationWhistleblowerEmployee MisconductDiscrimination

Common Investigation Blunders

DelayedBiased

CursoryToo short or not thorough

Inappropriate - threats and intimidationWidely broadcast

Effective Investigations

Prompt Planned

Thorough Unbiased

Shared only on a “need to know” basis Well-documented

Investigation Tools

InterviewsEmailWritten StatementsQuestionnairesSearchesSurveillance

Email Monitoring

Monitoring of email allowed when email is provided by employer

Nevertheless, employers should maintain written policies informing employees of monitoring, etc.

Investigation Planning

Review employee files Collect and review documents

• Relevant policies • Electronic communications

Create list of persons with knowledge Determine information to collect Set time table Seek counsel

Investigation Planning (continued)

Determine how you will document the investigation• Employee-prepared statements• Investigator-prepared statements• Tape recording

Things to Consider . . .

Should the accused employee be placed on leave during the investigation?

Is there a private place on-site to interview witnesses?

Would the complainant, accused employee, or any witness suffer reprisals from other managers or employees during the investigation?

Interview v. Interrogation

InterviewPurpose: fact-gatheringAssumes subject will provide accurate informationInterviewer listens more/talks lessOpen-ended questionsNeutrality toward subjectNon-coerciveBeginning of investigation

InterrogationPurpose: exact a confessionAssumes subject has reason to withhold information or lieInterviewer talks much/then listensReasonable suspicion of guiltCoerciveEnd of investigationRequires extensive preparation“Baiting” questions

Tips for Interviewing the Complainant

Conduct the interview in private

Thank the employee for bringing the problem to your attention• Remind employee of anti-retaliation protections

Ask open-ended questions

• Who? What? Where? When? How? etc.

Ask for corroborating witnesses, physical evidence, or notes

More Tips for Interviewing Complainant

Ask how the discrimination/harassment has affected him/her

Ask how the complainant would like to see the problem resolved, but do not commit to any action

Ask the complainant to provide/sign a written statement

Tips for Interviewing/Interrogating the Accused Employee

Conduct interview in private• Explain purpose of interview • Provide general description of allegations• Ask for accused employee's response • Ask why complainant and/or other employees would make

allegations• Baiting question: ask what email will reveal, other employees

will likely say• Ask about corroborating witnesses• Explain the investigation process• Ask for a signed statement

Tips for Interviewing Third-Party Witnesses

Conduct interview in private, one-on-one•What did you see?•What did you hear?•When? Where? Who else was present?

Follow up with open-ended questions Recognize hearsay Ask questions about context and/or motive

More Tips for Interviewing Third-Party Witnesses

Admonish the witness not to discuss the allegations or interview with other employees

Ask for a signed witness statement

Evaluating Credibility

PlausibilityDemeanor

• What is NOT said can be more important

• Non-verbal cuesMotiveCorroborationHistory

Summarizing the Investigation

Date and nature of complaint Summary of allegations and rebuttal Detailed account of investigative steps Detailed summary of interviews or statements

• Who? When? What? Analysis of applicable policies, practices or documents Conclusions and rationale

Corrective Action

Corrective action should:

• Be calculated to stop offensive behavior or conduct

• Not appear to punish the complainant• Be consistent with discipline imposed for the

same or similar violations of other employees• Follow company policies or rules

Seek Legal Help When . . .

● You receive a demand letter or call from employee's attorney

● The employee refuses to cooperate in the investigation or makes unreasonable demands

● The investigation reveals that the problem is more pervasive than you imagined

● The accused employee threatens litigation

Investigative Action Plan

General investigative guidelines for allegationsof discrimination, harassment or retaliation complaints.

Depending on the facts and circumstances, certain steps may be omitted or additional steps may be taken during the investigation.

● Interview Complainant - Obtain detailed, dated, signed account of the facts. - Ask Complainant to identify all facts

Investigative Action Plan

● Provide written communication to Complainant

- acknowledge the complaint, confirming commitment to EEO policy,

- advise that the investigation is underway, and - assure no retaliation.

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Investigative Action Plan

● Gather documents relating to complaint

● Interview witnesses (including anyone alleged to have engaged in misconduct) - obtain witness statements - document witness interviews - use questionnaires

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Investigative Action Plan

● Determine if additional witness interviews needed

● Document if review or further investigation needed - If so, complete and document

those steps

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Post-Investigation

• Review information obtained • Reach conclusions based on the

evidence• Prepare written summary of

conclusions

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Post-InvestigationConclusions:NOT legal conclusions:- “engaged in illegal harassment or

discrimination,” or- “violated the law” BUT Accurate, appropriate language - “engaged in unprofessional

conduct”

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Post-Investigation

Consider consulting legal counsel at this stage, or earlier in the process- helps ensure the protection of the

legal rights of employee and employer

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Post-Investigation

If information established misconductdetermine appropriate action

- to ensure no future misconduct, and - to discipline associate who

engaged in misconduct

e.g., warning, transfer, demotion, suspension, discharge, training, monitoring, probation

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Post-InvestigationIf evidence did not establish misconduct:

● Determine whether further communication of expectations still is necessary to ensure professional and respectful conduct

● Prepare appropriate written documentation, including statement that retaliation is prohibited

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Post-Investigation

• Document necessary follow-up steps– training – other communication steps taken to help

prevent any future problems• Maintain log of communications and actions

throughout investigation• Retain documents in separate file relating to

investigation

Merrily S. Archer Fisher & Phillips LLP

1999 Broadway, Suite 3300Denver, Colorado 80202www.laborlawyers.com

(303) 218-3656

Final Questions?

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