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©2013 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Palo Alto | Baltimore | Boston | Washington, D.C.

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Proper Procedures in Conducting HR Workplace Investigations*

prepared for

Pennsylvania Chamber of Business and IndustryHuman Resources Roundtable

presented by

Jonathan A. Segal, Esq.*No statements made in this seminar or in the PowerPoint or other materials should be construed as legal advice or as pertaining to specific factual situations. Further, participation in this seminar or any question and

answer (during or after the seminar) does not establish an attorney-client relationship between Duane Morris LLP and any participant (or his or her employer).

DM2/4209938.1

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PART I

2

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Confidentiality and Investigations

1. Importance of Confidentialitya. Minimizes the ability of any individual to

undermine the investigation by destroying evidence or creating a cover-up

b. Limits the potential for actual, potential or perceived retaliation

c. Protects the complainant from conversations that may make him/her uncomfortable

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2. Recent Cases/Guidancea. NLRB (Banner)

i. The employer suggested that employees keep the investigation confidential

ii. The employer did not impose any rule or mandate

iii. The employer’s justification: to protect the integrity of the investigatory process



2. Recent Cases/Guidancea. NLRB (Banner) (continued)

iv. Even though it was only a request and not a rule, the NLRB held that the request violated the NLRA

v. NLRB concern: even a suggestion may be interpreted as restricting protected concerted activity



2. Recent Cases/Guidancea. NLRB (Banner) (continued)

vi. Note: NLRA does not cover supervisors and managers as specifically defined by the NLRA; they are not employees under the Act so you can silence them (unless another law says you can’t)

vii. Status of Banner• Case on appeal, plus• Question as to whether Banner is good law in light of

appellate court finding that Board does not have constitutionally-appointed quorum to act



2. Recent Cases/Guidance (continued)

b. Civil Rights Lawsi. Examples: Title VII, ADA, ADEA, GINA

ii. Civil rights laws define employees subject to protection broader than the NLRA to include supervisors and managers

iii. Supervisors and managers who wish to share concerns about discrimination, harassment or retaliation may have protection under the civil rights laws, even though they are not protected under the NLRA



3. Risk Balancing:a. Under NLRA (Section 7 rights are not absolute)

b. NLRA v other laws



4. Possible Circumstances Where Employees May be Instructed to Keep Investigation Confidentiala. NLRB raised four (4) possible circumstances

i. Whether the witnesses need protection, for example:• Safety concerns (not specifically mentioned in case)• Retaliation concerns (not specifically mentioned in

case)



4. Possible Circumstances Where Employees May be Instructed to Keep Investigation Confidential (continued)

a. NLRB raised four (4) possible circumstances:ii. Whether evidence is in danger of being

destroyed

iii. Whether testimony is in fear of being fabricated

iv. Whether there is a need to prevent a cover-up




b. Other possible exceptions may include (although not specifically mentioned by NLRB but may be consistent with obligations under other laws)i. Involvement of and at direction of police

ii. Allegations involve other employees whom company has not yet interviewed




b. Other possible exceptions may include (although not specifically mentioned by NLRB but may be consistent with obligations under other laws)iii. Allegations contain confidential information about

others, such as medical condition about another employee




b. Other possible exceptions may include (although not specifically mentioned by NLRB but may be consistent with obligations under other laws)iv. Excessive talk is interfering with or may interfere

with investigation

v. Concern about other liability (for example, defamation)



5. Variablesa. Nature of Instruction

i. Request

ii. Request but make clear not requirement

iii. Requirement

b. Timing of Instructioni. Proactively

ii. Reactively



6. Options a. Individualized assessment under Banner for

each individual in each investigation (and document same)i. Ideal, legally

ii. But is it practical operationally?



6. Options (continued)

b. Take no Banner risk and remain silent on confidentialityi. Avoids NLRA risk

ii. But leaves open legal and other risks




c. Take some Banner risk and issue instruction, but take steps to minimize risk, such asi. Suggestion, not requirement (court may focus on

distinction)

ii. Explain legal protections instructed designed to safeguard (for example, to prevent retaliation)

iii. No adverse action for breach, unless approved by HR/legal




d. State Company’s position on confidentialityi. Explain why Company will disclose on need to

know basis only -- meta message

ii. Possible exception: accused (instruction)

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e. Verso Paper (Region 30)

i. Language at issue: Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including I

immediate termination.

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e. Verso Paperii. Regional Director upheld first two sentences

iii. Consider using first two sentences

iv. May want to add “For these and other reasons, the Company is keeping as confidential as possible.”

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PART II

21


When to Investigate?

1. Investigate if:a. Employee brings complaint directly to HR (notice to

managers and supervisors)

b. Manager/supervisor reports (as required) a complaint made to him or her by employee

c. Employee reports complaint by co-worker

d. Anonymous complaint capable of investigation

e. Constructive discharge allegations

f. Complaint upon involuntary termination

g. Complaint filed with administrative agency



1. Investigate if: (continued)

h. Apparent pattern

i. Social media postings of harassing/discriminatory/retaliatory nature



2. What if employee requests that there be no investigation?a. Tangible employment action: duty to

investigate



2. What if employee requests that there be no investigation? (continued)

b. No tangible employment action alleged (environmental only):i. Presumption in favor of investigating



2. What if employee requests that there be no investigation? b. No tangible employment action alleged

(environmental only): (continued)

ii. Factors to consider (include but are not limited to):• Severity• Pervasiveness• Whether others impacted• Whether other complaints by or against• Positions of parties• When and where• Trust



2. What if employee requests that there be no investigation? b. No tangible employment action alleged

(environmental only): (continued)

iii. If don’t investigate:• Document basis in memo to employee (not just to file)• Follow-up with employee• Observation of workplace behaviors• Empowerment tools


Who Should Investigate?

1. Refrain from participating in investigation if actual, potential or perceived conflict of interest, e.g.:a. Ethical conflict (attorney)

b. Personal relationship with either party

c. Necessary witness to any of the material events

d. Don’t think you can be objective


Who Should Investigate?

2. If allegations are very serious in terms of either severity or pervasiveness or involve senior officer, consider investigation by inside or outside counsel or outside human resources consultant


General Guidelines

1. Rolea. Representative of management

b. Not advocate for any individual

c. Be empathetic but neutral in your questions and reactions

d. Take every complaint seriously

e. Demonstrate actual and apparent objectivity


General Guidelines

2. Avoid legal or conclusory labels, such asa. Harassment

b. Harasser

c. Victim


General Guidelines

3. Importance of timelinessa. Commencement of Investigation

b. Completion of Investigation


General Guidelines

4. Questionsa. Easy, background questions first

b. Questions funneli. Start out open ended

ii. Become progressively more targeted

c. Behavioral (not legal)

d. Non-leading


Interview of Complainant

1. Explain process – emphasize:a. Truthfulness

b. Confidentiality

c. Non-retaliation



2. Core questions as to each allegation of environmental harassment:a. Who?

b. What?

c. How?

d. When?

e. Where?

f. Your response?

g. Witnesses?



3. Core questions as to each allegedly unlawful tangible employment action:a. What decision?

b. Who made decision?

c. Why does employee believe decision was unlawfully motivated?i. What was said?

ii. What was done?



4. Follow-up questions in all investigations:a. Anything else? (Invite back if subsequent

recollection)

b. Prior complaints to person with authority? (Define persons with authority)

c. Other employees with whom discussed concerns?

d. Supporting documentation?

e. Relief seeking (goal/objective)?



5. Conclude with:a. Nature of follow-up

b. Importance of confidentiality

c. Assurance of non-retaliation


Accused

1. Explain the process – emphasize:a. Truthfulness

b. Confidentiality

c. Non-retaliation


Accused

2. Disclose identity of complainanta. General rule – yes

b. Possible exceptions may include, but are not limited to:i. Public event

ii. Clear pattern (of private events)

iii. Significant safety concern

iv. Significant retaliation concerns


Accused

3. As for environmental harassment, review each allegation – 1 by 1a. Ask general questions first; become more

targeted as necessary

b. Distinguish between:i. Don’t recall whether it occurred

ii. Recall that it did not occur


Accused

4. For each allegedly unlawful tangible employment action:a. Determine who was decision maker(s)

b. Ask decision maker(s) directly about their motives


Accused

5. Emphasizea. Non-retaliation

b. Confidentiality

c. Non-interference


Witnesses

1. Explain the process – emphasize:a. Truthfulness

b. Confidentiality

c. Non-retaliationi. Prohibition

ii. Protection


Witnesses

2. Interviewsa. Disclose only “need to know” information

b. Focus on specific facts

c. Draw distinction between:i. Don’t recall whether it occurred

ii. Recall that it did not occur


Decision Making

1. Possible conclusions as to each allegation of environmental harassment:a. Occurred and inappropriate

b. Occurred but not inappropriate

c. Did not occur

d. Do not know whether occurred


Decision Making

2. Possible conclusions with regard to each challenged tangible employment action:a. Legitimate reason

i. Fair

ii. Unfair

b. Illegitimate reason


Decision Making

3. Documenting decision:a. Avoid legal label, wherever possible

b. Document credibility finding and basis for same


Decision Making

4. Documenting decision: (continued)

c. Factors to consider in making credibility determinations (include but are not limited to):i. Consistency

ii. Body Language

iii. Timing

iv. Corroboration

v. Other complaints

vi. History of veracity

vii. Nature of denial

viii. Memory

ix. Make sense

x. Other


Corrective Action (If Applicable)

1. Potential corrective actions:a. Reverse decision (and make individual whole)

b. Written reprimand/discipline

c. Mandatory training/behavioral counseling

d. Financial penalty (FLSA considerations)

e. Suspension (FLSA considerations)

f. Work or other restrictions



1. Potential corrective actions: (continued)

g. Demotion with reduction in pay

h. Oversight of employment decisions

i. Termination of employment

j. Termination of other relationship



2. Factors to considera. Severity

b. Pervasiveness

c. Prior indication that unwelcome

d. Prior warnings



2. Factors to consider (continued)

e. Position

f. Responsiveness to counseling/discipline

g. Intent (as a mitigating or aggravating factor)

h. Consistency (how other similar situations have been handled)


Retaliation

1. Prevent and correct unlawful retaliation againsta. Complainant

b. Witnesses

c. Others who participate in investigatory process

d. Others who are associated with complainant (e.g., spouse or child)


Retaliation

2. Prohibited retaliationa. Tangible employment actions

b. Other material terms and conditions of employment (e.g., assignments)

c. Adverse actions independent of the workforce


Retaliation

3. HR should:a. Raise non-retaliation with complainant and

accused when conclude investigation

b. Document in advance dates for follow-up meetings with both

c. Arrange for oversight of material employment decisions made by accused with regard to complainant, where applicable


Retaliation

3. HR should: (continued)

d. Document what parties say in follow-up meetings

e. Commence investigation immediately if any allegation of retaliation (or discrimination or harassment)


Documentation

1. Initial contact with complainant


Documentation

2. Notes of interviewsa. Content

b. Retention


Documentation

3. Summaries of interviews with complainant, accused and witnesses. Options:a. File memo

b. Written statement prepared by person

c. Memo from investigator to personi. Ask person to sign

ii. Give him/her opportunity to add, modify or delete • If employee deletes, need to determine why• Right to consult with counsel


Documentation

4. Summary of investigatory findings and reasons for findings


Documentation

5. Conclusory memos to complainant and accused:a. Summarizing factual (not legal) findings

b. Explaining corrective actions, if applicable

c. Emphasizing non-retaliation, etc.

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Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership

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