CLIENT CONFERENCE

Highlights and Critical Issues

Conducting Effective Investigations

CLIENT CONFERENCE

CLIENT CONFERENCE

7 Steps to Investigating Allegations of Employee Misconduct

1. Decide if you should investigate

2. Assign an appropriate investigator

3. Plan, gather electronic, physical and documentary evidence

4. Conduct and document your interviews

5. Reach a conclusion and write a report

6. Take appropriate corrective action

7. Tie up the loose ends and manage documents

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Focus: critical issues and important errors

Planning

Searches for physical evidence

Social media and other electronic communications

Credibility determinations

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The foundation for success

Planning

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The Investigation of Lee Smith

Ethics Hotline Report #13

Report date 3/11/2010

Report method Internet

Organization name Bright Circle Enterprises

Location Main office

Address 1015 18th St.

Blackacre, OH 44143

Is the reporter an employee? Yes

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The Investigation of Lee Smith (cont.)

Ethics Hotline Report #13

Issue type Violation of policy

Person identified as

engaging in this behavior

Lee Smith Assistant Vice President,

Marketing Department

Nature of violation Absenteeism

Breach of confidential

information

Reporter name Not given; wishes to remain

anonymous

Report filed 3/11/2010 at 1:53 pm.

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The Investigation of Lee Smith (cont.)

Lee is supposed to be managing us when really, he is

goofing off while supposedly “working from home.” When

he is here, he’s constantly throwing his weight around by

showing off how close he is to management and telling us

secret information he should not be sharing. We are sick

and tired of this kind of conduct. It’s not fair to the team

he is managing and the people he has to work with.

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Outlining and brainstorming

I. Is Lee Smith excessively absent from work/working from home without permission and/or

without his team knowing?

A. Potential evidence

1. Access records

2. Lee’s calendar/his assistant’s calendar

3. Travel records/receipts/reimbursement requests

B. Witnesses with relevant information

1. Lee’s assistant

2. Lee’s manager

3. Lee’s subordinates

C. Policies/rules on attendance for exempt employees

1. Policy manual

2. Code of Conduct

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Legal peril

Searches for physical evidence

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Hypothetical 1

Apex Corporation’s employee handbook prohibits employees from

possessing illegal drugs in the workplace and from using company

computers to view pornographic materials from the Internet. The

company’s policy is silent on whether the company has the right to search

its employees’ physical workspaces, but the policy does say the

organization will monitor and search company-issued computers. Eric, the

head of the marketing department, receives an anonymous tip that one of

his employees, Chet, stores illegal drugs in his office and frequently views

pornographic sites on the Internet using his office computer.

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Hypothetical 1, cont.

One morning while Chet is at an all-day meeting, Eric uses his master key to

open Chet’s locked office-which Chet shares with another employee (who is

also attending the same meeting) – and looks around the office. When he

sees nothing suspicious, he goes out to the company parking lot and looks

through the windows of Chet’s car. Seeing nothing, Eric opens Chet’s

unlocked car door and looks under the seat, where he finds a stash of

heroin.

That afternoon, Eric asks his IT department to determine which web sites

Chet has visited on his office computer. The IT department does a “remote”

search of Chet’s computer, which indicates that Chet has accessed

numerous pornographic web sites. Chet is terminated.

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Hypothetical 1 – Polling Question

Chet then sues, claiming that Apex Corporation violated his right to privacy by

conducting the searches. What is the result?

A. Chet wins, both for the search for drugs and the search of

his computer for pornography

B. Chet wins, but only on the drug search issue

C. Chet wins, but only on the pornography search issue

D. Chet loses on both counts

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Searches for Physical Evidence

Threshold question:

Does the person subject to the search have a reasonable expectation of

privacy?

o If not, then the search is lawful

o If they do, then additional questions must be asked/additional analysis

conducted

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Searches for Physical Evidence (cont’d)

Additional questions and analysis (when there is a reasonable expectation of

privacy):

Is the search nonetheless justified?

o How strong is the reason for being suspicious?

o How important is it to determine whether or not the allegation is true?

o How intrusive is the search?

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Searches – the bottom line

Searches are complicated and thus risky from a legal perspective.

Don’t conduct a search unless it has been approved by your legal team

o Let legal decide which legal battles it wants to take on

o Some searches may be pre-approved

• e.g., searches of employees’ personal bags in retail environments

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Change and uncertainty

Accessing employees’ electronic communications

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Hypothetical 2

An employee reports that several colleagues are making defamatory

comments about managers and other employees via (i) a private, password-

protected MySpace chat room using their work computers; (ii) their personal

email accounts (such as Yahoo and Gmail) using work computers; and (iii) text

messages sent through their work-issued cell phones. Your code of conduct

clearly states that employees must respect the organization and fellow

employees and managers and their behavior must reflect your organization’s

values. Your policy also says you will “monitor electronic communications as

necessary to ensure compliance with the Code.”

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Hypothetical 2, cont. – Polling Question

Which of the following behaviors would likely be lawful?

(Choose all that would be lawful)

A. Obtaining an employee’s login and password to the chat room and reading

the conversations

B. Pulling and reading emails sent from personal email accounts as they sit on

your organization’s server awaiting transmission to the web

C. Confiscating the cell phones and reading the text messages stored on them

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Electronic ‘searches’ and monitoring

Reviewing data that is stored on your own servers/devices generally is ok.

o Stored Communications Privacy Act

o Courts view data that is stored as just data—not communications

o The data is stored on the employer’s equipment.

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Electronic ‘searches’ and monitoring

Capturing communications as they are being transmitted to the web is

riskier—there is no clear law on this yet

o Differs from use of employer’s email system since the data is not stored on the

employer’s equipment.

Entering password-protected accounts/areas is risky, too

o How did you get the password?

• Was coercion involved?

o Also, some employees have the right to discuss terms and conditions of employment

• NLRB cases

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Change and uncertainty

Credibility determinations

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Hypothetical 3 – Polling Question

Tony complains that last Monday afternoon, he overheard his manager, Betty, offer a

bribe over the phone to an official from the country of Groq in order to win a contract

with the country’s presidential guard. You are assigned to conduct the investigation

and you interview Betty, who categorically denies offering the foreign official a bribe,

or even talking with the official recently. You cannot find any other witnesses who

overheard the conversation that Tony reported. Betty’s telephone extension shows a

call to a private number in Groq last Monday afternoon.

After you complete your investigation, could you legitimately conclude that Tony is

telling the truth and that Betty offered a bribe to the foreign government official? If

so, on what basis?

A. Yes

B. No

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Credibility Assessments

Five credibility assessment factors:

1. Inherent plausibility: Does the witness’s statement make sense?

2. Demeanor: Totality of response: body language, voice, words chosen, etc.

3. Corroboration

4. Past record

5. Motive

Not just “gut feelings”

The key: describing bases clearly in your investigative report

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Credibility Assessments

Natural (we are biologically equipped to assess credibility)

Legitimate

o Lay people asked to make similar determinations almost daily, when stakes are much

higher—without any training or practice at all

o Juries!

1. Inherent plausibility: Does the witness’s statement make sense?

2. Demeanor: Totality of response: body language, voice, words chosen, etc.

3. Corroboration

4. Past record

5. Motive

CLIENT CONFERENCE

7 Steps to Investigating Allegations of Employee Misconduct

1. Decide if you should investigate

2. Assign an appropriate investigator

3. Plan, gather electronic, physical and documentary evidence

4. Conduct and document your interviews

5. Reach a conclusion and write a report

6. Take appropriate corrective action

7. Tie up the loose ends and manage documents

CLIENT CONFERENCE

Questions?