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Conducting Workplace Investigations
Presented by DeGroot Management Services2015
LEGAL DISCLAIMERThe information contained in this presentation is provided for informational purposes only, and should not be construed as legal advice on any subject matter.You should not act or refrain from acting on the basis of any content included in this presentation without seeking legal or other professional advice. The contents of this presentation contain general information and may not reflect current legal developments or address your situation. We disclaim all liability for actions you take or fail to take based on any content on this presentation
Why Conduct an Investigation? Recent Developments Setting Goals & Recognizing a complaint Important Steps Interviewing Process Evaluating Interviews/Determination & Final report After the Investigation & Document Retention Common Mistakes Questions
Overview
Employee complaints of harassment or discrimination
Employee complaints of retaliation
Supervisor/Manager witnesses incident
Allegations of misconduct, theft, etc.
Why Conduct an Investigation?
Once a complaint is received, Federal and State laws impose a duty on the part of the employer to investigate.
Failure to investigate can create additional liability and make the company “look bad”.
A good investigation can limit or avoid liability in some cases.
Why Conduct an Investigation?
2014 – EEOC investigated 88,778 charges filed. Race discrimination was 35%, sex discrimination, including sexual harassment and pregnancy discrimination at 29% and disability was 28%. Workplace Harassment, including Sexual Harassment cases handled by EEOC resulted in $93.9 million in monetary benefits awarded. (www.eeoc.gov)
Recent Developments
To determine if a problem exists
Protect the Employer from Liability
Opportunity to demonstrate fairness by the Employer
To encourage employees to report problems to management.
Setting Goals
Written or verbal communication from employee complaining of harassment or other misconduct.
Employee verbally states he/she has been treated badly or unfairly
Supervisor reports that inappropriate acts or misconduct has occurred
DOES NOT HAVE TO BE IN WRITING, AND CANNOT BE REQUIRED TO BE IN WRITING
How do you recognize a complaint?
Statements that employee is “fed up” with something about the Employer
Comment from employee directly or overheard by supervisor about misconduct in workplace, but no specific “complaint”
NO MAGIC WORDS
How do you recognize a complaint?
1. Determine if immediate action required
• Suspension of employees (paid or unpaid)
• Transfer to other departments, separate employees during investigation
• Communication with complainant
Important Steps
2. Choosing the Investigator
Demeanor/male or female/Internal or external/attorney ornon-attorney
Can’t be complainant/accused/witness
Can judge credibility / Common sense/organized/analytical
Understands the importance of investigation
Can think quickly/ Can be impartial and objectiveKnowledge of policies and/or bargaining agreementsHas the time to conduct a prompt investigation
Important Steps
Investigator could be called as a witness Attorney-client privilege ? Credibility issues with Company personnel Are they an effective interviewer? What is Relationship to the Company or to
interviewees?
Important Steps
In-house HR personnel- relationship with those involved in the conduct?In-house counsel - Concerns with preserving attorney-client
privilege- appropriate with executive involvement/direct
reports
Examples of Appropriate Investigators
Security department personnelOutside counsel- becomes “investigator” and “witness” in lawsuit
could damage attorney-client privilege or be disqualified from representing
- Perception of bias Outside HR consultant
Examples of Appropriate Investigators
Interviews should be in private setting with limitedinterruptions (may require off-site location)
Two people present - questioner and note taker
Interview one at a time – not in a group
For Union workforce, Employee has right to UnionRep if questioning could lead to discipline
Witness Interviewing
3. Review all pertinent documentation
• emails and other electronic communications and files
• Employer’s policies
• Any Collective Bargaining Agreements
• Personnel files
Important Steps
4. Make a decision based on all of the evidence and write a final report.
5. Keeping documentation on file
6. After Concluding Investigation
Important Steps
1. Order of Interviewing (case by case, but usually)• A. Complainant • B. First hand witnesses• C. Accused• D. Additional witnesses
2. Suggested Script• Why are we here?• Employees role –expectation of honesty and of cooperation• Seriousness of investigation• Confidentiality will be maintained, to the extent possible consistent with
the Company’s obligation to conduct a thorough investigation• Prohibition against retaliation
Interviewing Process
Employer will not permit retaliation of any kind against anyone who opposes a discriminatory practice, makes a good faith complaint about harassment and/or discrimination, or furnishes information or participates in any manner in an investigation of such a complaint. Retaliation includes any conduct, whether or not workplace or employment-related, directed at someone because he or she made a complaint of discrimination or participated in such an investigation, which might deter a reasonable worker from making or supporting a charge of harassment or discrimination.
Retaliation is unlawful and will not be tolerated. Any individual found to have engaged in retaliation will be subject to disciplinary action, up to and including termination of employment.
If you feel as though someone is subjecting you to retaliation as a result
of a complaint or your participation into the investigation of a complaint, you should contact (_name & number_)
Have interviewees sign and date
Retaliation Statement
Techniques • Slow down• Simple questions first, then ask harder questions.• Get a timeline• Observe body language• Rumor or speculation should be noted, nothing is
“off the record”• Confirm information at conclusion, repeat
information, “Is there anything else?”
Interviewing process
Details are extremely important, specifics of what happened, what was said, when did it occur, how often, any witnesses.
Complained to others? Similar complaints from other employees?
Anything else I should know? Thank them for coming forward-Report any
retaliation immediately-sign off on retaliation form
Interviewing Complainant
Interview every witness that the Complainant identifies
Question responses that seem “canned” If these are former employees, meet in neutral
location where possible. Anything else I should know? Thank them for cooperation/retaliation declaration
Interviewing Witnesses
Get all the details, and a response from the accused on each and every allegation made by the complainant. Ask them to identify potential witnesses that support their story and interview those witnesses as well
Why would the complainant lie or make this up? Anything else ? Thank you/ Anti-retaliation declaration
Interviewing the Accused
What did he/she know?
If he/she knew about it, was it reported to HR, what was done? (if nothing, consider discipline for supervisor)
Any performance issues for Complainant/Any disciplinary issues for Complainant
Anything else/Retaliation
Interview the Supervisor
Determining witness credibility
• Be Objective – is the interviewee believable, too vague or too consistent?
• Consider any possible Motives or Bias
• Consider attitudes and demeanor
Evaluating all of the Interviews
Review all information carefully
Indicate whether the complaint was substantiated or unsubstantiated, and why.
Keep notes and determination in separate complaint file, marked confidential
Determination & Final Report
Take Immediate Corrective Action
What is reasonable corrective action?Consider severity, frequency and duration of conductCorrective action should stop the offensive behaviorShould be proportionate to the offense
After the Investigation
Corrective Action for the Accused may include:• Termination• Discipline (suspension without pay, written
warning, etc.)• Transfer of Accused, demotion, loss of promotion
or bonus, reduction in pay, etc. (Proceed with Caution)
• Training • Counseling
After the Investigation
Remedies for the Complainant may include:a. Offering paid leave or Company-paid counselingb. If employee confirms he/she wishes to leave
Company, negotiate severance package (with complete release)
c. Paying for any costs incurred (counseling, medical costs, loss of benefits/pay or accrued leave for absences caused by harassment, etc.)
After the Investigation
Meet with the Accused and Complainant separately to provide him/her with summary of conclusion(s) of investigation and any action, if any, to be taken
Memo should remind both parties of prohibition of harassment and retaliation
Memo should remind both parties of open-door policy or other process if he/she is dissatisfied with results and action taken
After the Investigation
Keep all files, including interview notes, witness statements, correspondence and documents gathered for the investigation, in a separate file, marked “Investigation”—these should not be kept in a personnel file
Mark all investigation files “confidential” and keep in a locked file.
Documentation retention
Failure to investigate in a timely manner
Promising complete confidentiality to any party
Failing to properly document the investigation
Failing to interview the Accused prior to reaching a conclusion
Not having a reporting structure in place
Common Mistakes
Employers must conduct a timely and thorough investigation events that occur in the workplace.
Your Investigation and documentation can provide the necessary evidence to defend against a complaint by past, as well as current employees.
A good investigation can limit or avoid liability in some cases.
Conclusions
Thank you for attending!
JoLynn HaresignDeGroot Management Services
Questions?
