conducting effective workplace …...conducting effective workplace investigations in the #metoo era...
TRANSCRIPT
CONDUCTING EFFECTIVE
WORKPLACE INVESTIGATIONS
IN THE #METOO ERA
APRIL 13, 2018
John [email protected]
208.344.6000
OVERVIEW
• Impact of the #MeToo movement
• Best practices for conducting effective
workplace investigations
• Step-by-step process
• Common mistakes to avoid
• Tips to avoid retaliation claims
To: Human Resources
From: Employee
Re: Harassment
I feel like I’m working in a hostile work
environment! Please help.
WORKPLACE HARASSMENT IN THE NEWS
WORKPLACE HARASSMENT IN THE NEWS
THE #METOO MOVEMENT
IMPACT OF #METOO IN THE WORKPLACE
• Increased awareness of workplace
harassment
• Employees are more willing to report
concerns (#MeToo)
• Fear
• Public debate of due process and appropriate
response to harassment allegations
IMPACT OF #METOO
WHEN TO CONDUCT INVESTIGATIONS
• Discrimination
• Harassment
• Workplace violence
• Employee theft or other criminal activity
• Whistleblower
• Policy violations
• Stupid behavior
WHY CONDUCT INVESTIGATIONS?
• Find out whether policy violation occurred
• Determine who was involved in the policy
violation
• Determine appropriate corrective action
• Prevent similar or more serious incidents in
the future
• Legal reasons
ELLERTH-FARAGHER AFFIRMATIVE
DEFENSE TO HARASSMENT CLAIMS
• Employers can usually avoid liability for
harassment claims by establishing:
1) Employer took reasonable measures to
prevent and correct any unlawful harassment
2) Employee unreasonably failed to take
advantage of reporting procedures
INVESTIGATION RISKS
• Discovery concerns
– Assume that any investigation report will be
made public
• Retaliation concerns
WHO SHOULD BE INVOLVED?
• Law enforcement?
• Internal (HR) or third-party?
– Familiarity/cost v. objectivity/perception
• Attorney or non-attorney investigator?
– How serious is the complaint?
– How likely is litigation?
– Do you want to cloak the investigation in privilege?
PLANNING THE INVESTIGATION
• Gather and preserve evidence (personnel file, emails, texts, etc.)
• Identify “need-to-know” group
• Should the accused employee be suspended pending investigation?
• Who should be interviewed, and in what order?
• Should you give witnesses advance notice of interviews?
• How much should witnesses be told?
STARTING THE INTERVIEWS
• Explain the investigation process
• Explain that truth and candor is required
• Explain retaliation policy
• Do not promise confidentiality
• Request confidentiality
CONFIDENTIALITY
• NLRB Position: Employer must have a business justification for prohibiting employees from discussing an ongoing investigation.
– protect an investigation witness;
– preserve evidence that is in danger of being destroyed;
– preclude fabrication of testimony that is in danger of being fabricated; or
– prevent a cover-up.
DOCUMENT INTERVIEWS
• 2 people conduct interviews (1 takes notes)
• Record interview?
WHAT TO ASK IN INTERVIEWS
• Ask non-leading, open-ended questions
• Who, what, when, where, how?
• Ask for notes or any corroborating documents
• Ask if there are other witnesses
• Ask if the allegations have been reported previously, and to whom
• Listen (let them tell their story)
• Anything else you want to add?
• End with a reminder or confidentiality / retaliation
INVESTIGATION REPORT
• Describe the complaint
• Identify the applicable policy or issue
• List individuals interviewed and summarize the information provided
• Identify relevant documents/evidence reviewed
• State whether allegations have been substantiated
• State findings/conclusions
• Do not state recommendations or give advice
• Assume whatever you write will be made public
REPORT FINDINGS/CONCLUSIONS
• Report factual findings: – Employee violated the company’s _____ policy by _____
– The evidence substantiates the allegations that employee _______
– Employee’s allegations that ______ are not substantiated
• Do not make legal conclusions:– Employee created a hostile work environment by sexually
harassing his co-workers
– Employee unlawfully discriminated against a subordinate based on her race
TAKE APPROPRIATE ACTION
• Separate from report conclusions, determine
an appropriate response depending on:
1) Finding of policy violation
2) Allegations are disproven
3) Inconclusive finding
POST-INVESTIGATION COMMUNICATION
• Communicate the outcome to:– Complainant
– Accused
• Remind complainant , accused and witnesses of your retaliation policy and instruct them to report retaliation immediately
• Determine appropriate communication, if any, to co-workers
• Follow up with the complainant to ask of conduct has continued
RETALIATION
• Protected activity + adverse employment
action + causal connection = Retaliation
• Adverse action shortly after protected activity
= inference of retaliation
– Legal presumption of retaliation if adverse
action is taken within 6 months of protected
activity
TIPS TO AVOID RETALIATION CLAIMS
• Keep the investigation confidential
• Explain (and document) no-retaliation policy
• Provide written instruction to immediately
report any retaliation
• Follow up with the complainant
COMMON INVESTIGATION MISTAKES
• Failing to conduct a prompt, thorough and
impartial investigation
• Failing to document the investigation
• Reaching a conclusion before gathering all
evidence and interviewing the accused
• Failing to address retaliation
