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  • CONDUCTING BULLETPROOF

    INVESTIGATIONS

    www.laborlawyers.com

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

    marcher@laborlawyers.com

    Atlanta · Charlotte · Chicago · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City Las Vegas · New Jersey · New Orleans · Orlando · Philadelphia · Portland · San Diego · San Francisco · Tampa

    www.laborlawyers.com

  • 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 Environment Retaliation Whistleblower Employee Misconduct Discrimination

  • Common Investigation Blunders

    Delayed Biased

    Cursory Too short or not thorough

    Inappropriate - threats and intimidation Widely broadcast

  • Effective Investigations

     Prompt  Planned

     Thorough  Unbiased

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

  • Investigation Tools

    Interviews Email Written Statements Questionnaires Searches Surveillance

  • 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

    Interview Purpose: fact-gathering Assumes subject will provide accurate information Interviewer listens more/talks less Open-ended questions Neutrality toward subject Non-coercive Beginning of investigation

    Interrogation Purpose: exact a confession Assumes subject has reason to withhold information or lie Interviewer talks much/then listens Reasonable suspicion of guilt Coercive End of investigation Requires 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

    Plausibility Demeanor

    • What is NOT said can be more important

    • Non-verbal cues Motive Corroboration History

  • 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 allegations of 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.

  • 26

    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

  • 27

    Investigative Action Plan

    ● Determine if additional witness interviews needed

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

    those steps

  • 28

    Post-Investigation

    • Review information obtained • Reach conclusions based on the

    evidence • Prepare written summary of

    conclusions

  • 29

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

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

    conduct”

  • 30

    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

  • 31

    Post-Investigation

    If information established misconduct determine 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

  • 32

    Post-Investigation If 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

  • 33

    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 3300 Denver, Colorado 80202 www.laborlawyers.com

    (303) 218-3656

    Final Questions?

    Atlanta · Ch

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