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Solving the Mystery Behind Conducting a

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Solving the Mystery Behind Conducting a Flawless Workplace Investigation - An HR Attorney s Perspective Jessica T. Walberg, Esquire 407-418-2300 – PowerPoint PPT presentation

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Title: Solving the Mystery Behind Conducting a


1
Solving the Mystery Behind Conducting a
Flawless Workplace Investigation - An HR
Attorneys Perspective
  • Jessica T. Walberg, Esquire
  • 407-418-2300
  • jwalberg_at_fordharrison.com

2
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?

3
What Constitutes a Complaint?
4
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

5
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)

6
Duty to Investigate
7
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!)

8
Selecting the Investigator
9
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)

10
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

11
Selecting the Investigator
  • Manager or supervisor
  • HR professional (perfect witness)
  • Private investigator or outside consultant
  • In-house counsel
  • Outside counsel

12
Conducting the Investigation
13
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

14
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

15
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

16
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

17
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

18
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

19
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.)

20
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!

21
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!

22
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

23
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)

24
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

25
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)

26
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

27
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?

28
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)

29
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?

30
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

31
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

32
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

33
Preparing the Investigative Report
34
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)

35
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

36
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

37
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?

38
Preparing the Investigative Report There was a
Violation.
  • What is appropriate discipline?
  • Disciplinary counseling
  • Transfer
  • Suspension
  • Last Chance Agreement
  • Demotion
  • Discharge

39
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

40
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

41
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

42
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?

43
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?

44
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

45
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

46
Common InvestigationMistakes to Avoid
47
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

48
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

49
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

50
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

51
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

52
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
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