37 Offices in 18 Countries

Workplace Investigations

Tara Aschenbrandtara.aschenbrand@squiresanders.com

Meghan Hillmeghan.hill@squiresanders.com

May 24, 2012

2

Agenda

• Statutory Law Review

• Case Law Update

• Importance of a good harassment policy

• Essentials to a good investigation

• Q&A

3

Statutory Laws

• Title VII of the Civil Rights Act of 1964

Prohibits discrimination based upon gender, race, religion, national

origin or color

• Americans with Disabilities Act (“ADA”)

Prohibits discrimination based upon disability

• Age Discrimination in Employment Act (“ADEA”)

Prohibits discrimination based upon age (over 40)

• State or Local Discrimination Laws

May protect more classifications, e.g. sexual orientation

4

• Sexual Harassment most common

• Can be based on any other protected classification (e.g.

race, age, disability)

Harassment

5

Trends From Recent Cases

6

Hostile Work Environment: Co-Worker

An employer may be held liable for a hostile environment createdby a plaintiff’s non-supervisory co-workers if the plaintiffestablishes that

(1) the employer failed to provide a reasonable avenue forcomplaint, or

(2) if the employer knew or should have known of theharassment and failed to take prompt and appropriate remedialaction.

7

Hostile Work Environment: Supervisor

A company is liable for a hostile work environment created by itssupervisors unless it successfully establishes that:

(1) It exercised reasonable care to prevent and correctpromptly any sexually harassing behavior; and

(2) The employee unreasonably failed to take advantage ofany preventative or corrective opportunities provided by theemployer to avoid harm

Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir.2009)

8

Failure to Investigate

Can support evidence of hostile work environment

– Petril v. Cheyney Univ. of Penn., 789 F. Supp. 2d 574(E.D. Penn. 2011)

Can lose any affirmative defense to hostile work

environment

– Stewart v. Trans-ACC, 2011 U.S. Dist. LEXIS 44414 (S.D.Ohio Apr. 25, 2011)

Can form the basis of intentional discrimination claim

even where the original harassment was not clearly

related to a protected characteristic

– Davis v. National Railroad Passenger Corp., 733 F. Supp.2d 474 (D. Del. 2010)

Can support retaliation claim

– Petril v. Cheyney Univ. of Penn., 789 F. Supp. 2d 574(E.D. Penn. 2011)

9

Adequate Investigation

• Can alleviate liability for a hostile work environment claim

Bernstein v. City of Atlantic City, 2012 U.S. Dist. LEXIS 44849

(D. N.J. March 30, 2012)

• Steps Courts Look For

Prompt investigation (within a day or two following complaint)

Interview appropriate witnesses

Written report

Appropriate Discipline

10

Steps for ProperInvestigation

11

Step 1: Internal Policies

• Ensure you have written policies on EEO and Anti-Harassment

• Generally describe prohibited behavior

• Have at least 2 avenues of reporting – Make sure people /positions in your policy exist and actually do receivecomplaints

HR

Supervisor

• Technology Policies

12

Step 2: Train employees on policies

• Supervisors

• HR

• Employees

13

Step 3: Complaint

• Determine who will receive complaints

• Get complaint in writing

• Assess the nature of the complaint Sexual

Racial

Other characteristic

• Immediate Action Needed Criminal act

Threat of violence

Other immediate safety concern

14

Anonymous Complaint: What To Do?

• Vague

• Sufficient information to conduct investigation

15

Step 4: Who Should Conduct the Investigation?

• Human Resources Investigation will not be privileged

• In-House Counsel Parts of investigation can remain privileged

• Outside Counsel Recommended if accused is a member of senior management or if the

allegations are serious (e.g. sexual assault on company grounds)

16

Factors To Consider

• Independence / Credibility

• Knowledge regarding internal dynamics

• Privilege

Documents created during investigation should be scrutinized

• Potential disqualification in future litigation where counselconducts internal investigation

17

Step 5: Prepare for Investigation

• Document Preservation

Record retention policy

• Identify relevant witnesses

• Review document

For Position Only

18

Step 6: Witness Interviews

• General Order

Complainant

Alleged harasser

Supervisor

Co-workers

Re-interview of complainant

For Position Only

19

Witness Interviews

• Logistics

Interview witnesses separately

Should be interviewer and second person to

observe the interview

• Notifications & Explanations

General

Confidentiality

Retaliation not tolerated

• Questioning

Who, what, where, when, why, how

• Things to Remember

Record witness’s statements not your

conclusions

Avoid appearance of favoritism

20

Witness Interviews

• Cooperation

Generally, it constitutes a legitimate, non-discriminatory reason to

discharge an employee who refuses to cooperate during an internal

investigation.

• 5th Amendment

Under the Fifth Amendment, public employees cannot be compelled to

incriminate themselves in the conduct of a crime. Public employer

cannot compel the employee to cooperate in the investigation by

threatening to fire him (as a private employer could do) if such

cooperation could incriminate the employee in criminal conduct.

• Right to Counsel

For Position Only

21

Public Employers

• 1st Amendment

• 4th Amendment

• 5th Amendment

• Right to Counsel

22

Complainant Refuses to Cooperate

• Maintain a log identifying conversations

• Document refusal

For Position Only

23

Step 7: Wrapping Up Investigation

• Discuss results with complainant

• Written notification of results to alleged

harasser

• Other employees – not appropriate to inform

them of results

• Investigation summary

For Position Only

24

Step 8: Remedial Actions

• Document investigation in personnel file

• Education / training – group or individual

• Verbal warning

• Written warning

• Suspension

• Demotion

• Transfer

• Termination

For Position Only

25

Things to Consider

• Compliance with internal policies

• Liability to the victim

• Negligent retention liability

• Outside counsel disqualification

• Fair Credit Reporting Act

• Electronic monitoring

• NLRA or collective bargaining agreementissues

• Invasion of privacy

• Defamation of the accused

• Discrimination against the accused

• Attorney-Client Privilege

• Preservation of documents

For Position Only

26

Hypothetical

Employee Jane comes to you and says the following post hasbeen made on her Facebook page by her co-worker Bob:

you have such a great body. going to grab it next time I see you.

The message was not posted from a company computer andnot during work hours.

What do you do?

37 Offices in 18 Countries

Workplace Investigations

Tara Aschenbrandtara.aschenbrand@squiresanders.com

Meghan Hillmeghan.hill@squiresanders.com

May 24, 2012