2021 Houston Regional Employer Conference - littler.com

2021 HoustonRegional Employer Conference

The Outlook Ahead: Equipping You to Navigate a New Workplace

Tuesday| October 26, 2021

Conducting Efficient and Effective Remote Investigations in the COVID‐19 Era

Katherine FlanaganShareholder, [email protected], 713.652.4704

Marla MooreWorkplace Training and Investigations [email protected]

© Littler Mendelson, P.C. | 3

Agenda• Why Are Good Investigations Important?

• Planning and Conducting Investigations

• Investigations in the Time of COVID‐19

• Interviewing and Assessing Credibility

• Documenting Findings and Next Steps

• After the Investigation

Why Are Good Investigations Important?


Why Is it Important to Get Investigations Right?

• Take appropriate action to protect company and employees and uncover potential problems• New Texas Law

• Create a “speak up” culture where employees feel comfortable bringing complaints forward

• Resolve complaints internally if possible• Provides information needed to respond to government agency inquiries, including Equal Employment Opportunity Commission (EEOC) Charges, Department of Labor (DOL) investigations, etc.

• Helps build defense for some types of litigation (specifically harassment investigations)

Let’s Take a Look…

What Is a “Good” Investigation?

• Starts with a good complaint policy and procedure• Trained professional to receive and investigate complaints• Timely and thorough• Speak with accused• Interview witnesses • Document interviews• Documents and evidence collected and secured

EEOC Checklist

• Well‐trained, objective, and neutral investigators• Timely responses and investigations• Investigators who document all steps taken from the point of first contact and who prepare a written report using guidelines to weigh credibility

• An investigation that protects the privacy of individuals who file complaints or reports, individuals who provide information during the investigation, and the person(s) alleged to have engaged in harassment, to the greatest extent possible

What Happens When You Get it Wrong?

Planning for the Investigation


The Investigation Process

Complaint Made/ Received

Complainant Interviewed

Accused Interviewed

Witnesses Interviewed

Documents Reviewed

Analysis of Data

Re‐interviews Decision Reached

Decision Implemented

Follow Up

Organize File

Report Prepared

Investigations in the Time of COVID‐19


Investigations on the Rise

• COVID• Illness/death• Isolation from loved ones• Separation from workplace• Masks, vaccines, etc.

• Economic Impact• Layoffs• Salary reductions

• Protests, Activism • Politics

• Political discussions• Polarized viewpoints

• Elections• Supreme Court nomination


How Is COVID‐19 Affecting Investigations?

• We’re l‐i‐v‐i‐n‐g in a VIRTUAL world• Challenges due to remote working• Logistical concerns (Zoom, in‐person, collecting evidence)

• Witness availability (leaves, RIFs, resignations)


Can Investigations Be Conducted Virtually?

• Absolutely! • Advantages

• Efficiency of virtual interviewsoNo traveloGreater availabilityoRecording?

• Leverage expertise and resources across geographies

• Disadvantages• Assessing witness credibility• Control over evidence and confidentiality

Interviewing and Assessing Credibility

In a Virtual World


The Investigator’s Role

• Impartial (no biases, history & record)• Good listener• Thorough investigation• Attention to detail• Properly document investigation• Take out the emotion• Reach reasonable conclusions supported by evidence• Only if appropriate/asked, recommend remedy


Interviews

• Who to interview? • What to ask? How?• What if someone refuses an interview?• What about former employees with information?• Why not simply ask the witness for statement instead of interviewing them?


Taking Notes

• Be prepared:• Written outline/list of allegations• Basic questions organized by allegation• Space for “parking lot” issues


Interview Note Dos and Don’ts

• Do• Write objectively• Summarize knowledge• Give specific responses to key questions and documents

• Use quotes• Lock the witness’ story down• Note relevant facts that may evidence credibility

• Don’t• Make conclusionsas to the ultimate issue or credibility

• Don’t use shorthand or uncommon acronyms

• Stick unwaveringly to script


Making Credibility Determinations

EEOC Standards:• Inherent plausibility: Is the account believable? Does it make sense?• Demeanor: How did the person behave/act?• Motive to falsify: Did the person have a reason to lie?• Corroboration:

• Is there witness testimony (such as testimony by eye‐witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?

• Past record: Did the alleged harasser have a history of similar behavior?


Verbal Deception Cues

• Answers question with a question• “Why would I do that?”

• Uses oddly formal language• Refuses to use person’s name• Makes emphatic comments

• “To tell the truth,” “As God as my witness,” “I swear”• Talks about self in third person• Uses the passive voice

• “The door was left open” versus “I left the door open”• Hesitates before answering question• Alters pitch or tone of voice• Provides non‐verbal response

• Shaking or nodding the head instead of saying yes or no


Test your skills!


Deception cues – Tells• Tries to “hide”• Chuckles or smiles at inappropriate times• Leans forward or back• Starts sweating• Starts fidgeting• Makes emphatic• Gestures• Any odd, repetitive behavior


Universal Micro‐expressions

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Test your skills!


Deception cues – Body Language

• Tries to put distance or an object between himself and you

• Crosses arms and/or clenches fists• Sits extremely still• Avoids eye contact• Nods head yes when saying no (or vice versa)

• Gets overly defensive or angry


Keep in mind…

• Discomfort may not mean what you think it means• Witnesses may be nervous about process generally• Cultural differences, particularly when interviewing witnesses from othercountries

• Look for multiple deception cues, not just one or two• Look for clusters of deception cues around particular line of questioning• Look for changes in behavior over course of interview

Documenting the Investigation

and Preserving Evidence


Example of How to Document

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.”

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


A Final Note About Your Notes

• Drafts and final?• Handwritten or typed?• Creating a single, definitive and legible draft of notes or just the draft?

• Include the investigation who, when, and where

• Investigation report• Privileged?


Preserving Documents

• Personnel files• Timecards• Medical files• Expense files• Project files• Documents in possession of the claimant and witnesses


Electronic Data and Communications—Issues

• E‐mail on the system • Archived e‐mail• Calendar entries• Cameras/videos• Recordings• Internet searches• Voice mail• Social media• Text messages

After the Investigation


You’re With Me…Right?


More From the EEOC Checklist

• A communication of the determination of the investigation to all parties and, where appropriate, a communication of the sanction imposed if harassment was found to have occurred


Minimizing the Fallout

• Monitor for retaliation• Tension? Arguments? Strife among team?• Avoidance of complainant? Of accused?• Be alert to employment decisions involving the complainant

• If we discipline someone because of conduct substantiated in investigation, make sure we follow terms of discipline.

• Check in with employees after investigation closed and some time has passed• How are things?• Anything you want to discuss?• Here if that changes


Thank You!