conducting an effective internal investigation in the united states tuesday, january 12, 2010 ©...
TRANSCRIPT
Conducting an Effective Internal Investigation
in the United StatesTuesday, January 12, 2010
© Employment Law Alliance
Presenters
Stephen J. Hirschfeld, Moderator, CEO of the Employment Law Alliance and Partner, Curiale Hirschfeld Kraemer LLP, San Francisco, [email protected]
Michael E. Blue, Ray, Quinney & Nebeker, Salt Lake City, [email protected]
Phyllis G. Cancienne, Baker Donelson, Bearman, Caldwell & Berkowitz, PC, Baton Rouge, [email protected]
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Presenters
Leonard Court, Crowe & Dunlevy, Oklahoma City, [email protected]
Kristine Dunne, Arent Fox LLP, Washington, [email protected]
Jon Sogn, Lynn, Jackson, Shultz & Lebrun, P.C., Sioux Falls, [email protected]
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Presenters
Patricia L. “Penny” Zobel, DeLisio Moran Geraghty & Zobel, P.C., Anchorage, [email protected]
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Introduction
Introduction
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Standards of Proof
• Beyond a reasonable doubt
• Clear and convincing evidence
• Preponderance of the evidence
• Good faith investigation/reasonable conclusion
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The Initial Meeting – Purpose/Objective
• Instilling confidence in the system and you
• Initial Considerations
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The Initial Meeting
• Gathering all material facts:• Who?• What?• When?• Where?• Why?• Determining if formal or informal
investigation is needed
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Planning the Investigation:
Important Considerations
• What facts/documents can you unilaterally gather?
• Who should conduct the investigation?
• Who should be interviewed?
• How should the interviews be conducted?
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Interim Actions
Interim Actions
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Key Points of Consideration
• Will administrative leave take place before or after you confront the accused?
• Will removing the accused make things better or worse?
• Who should you consult beforehand? HR? Legal? Is a risk or threat assessment necessary?
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Key Points of Consideration
• How will you respond to the accused when asked why removing him or her is necessary?
• What, if anything, should co-workers and members of the public be told about the employee’s departure?
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Key Points of Consideration
• What are the terms of the leave?
• With pay?
• Whom should he or she contact?
• What should he or she do during that time?
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Anticipating Issues that May Arise
• Fifth Amendment/right to remain silent/ duty to cooperate
• Can I get into trouble by cooperating?
• Right to counsel
• Right to union representation
• Minimizing claims of retaliation
• Protecting confidentiality of investigation
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Meeting with the Accused
• INITIAL CONSIDERATIONSProfessionalism/mental preparation
• OUTLINE THE ISSUESCarefully analyze all facts
• LIST THE FACTS/CREATE A CHRONOLOGY
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Meeting with the Accused
• NOTETAKING IS CRITICALDo the best you can to capture key facts during the interview and complete your notes IMMEDIATELY after the interview is completed while the information is still fresh.
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Asking Effective Questions
• Broad to narrow questions
• Leading questions
• Tough questions
• Follow-up questions
• Committing interviewee to a story/ chronology
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What if the Accused Denies Wrongdoing?
• Explore possible ill-motives
• Ask:“Do you have any idea why he/she would make this up?”
• Ask:“Have you had any conflicts or problems with him/her?”
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Interviewing Witnesses
• Non-cooperative witness
• Witness who loves the limelight
• Witness with an axe to grind
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Assessing Credibility
• Demeanor
• Logic/consistency of story
• Corroborating evidence
• Circumstantial evidence
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Reaching a Conclusion
• Relevant vs. irrelevant evidence
• Determining what evidence is authentic and believable
• Factoring credibility and ill-motive into the equation
• Putting together the “pieces of the puzzle”
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Preparing Your Investigation
Report
• Preparation of the report
• Contents of the report
• Access to the report
• Documentation retention
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Attorney-ClientPrivilege
Attorney-Client Privilege
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Conclusionand Wrap-Up
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