Internal Investigations: Best Practices & Lessons Learned

Christine Binotti, Senior Compliance Counsel Motorola Solutions, Inc.

Chief Litigation Officer Summit

September 23, 2016

Christine Binotti, Senior Compliance Counsel

Internal Investigations: Best Practices & Lessons Learned

Agenda

• Why investigate?

• Commencing an investigation

• Conducting the investigation

• Concluding the investigation

• Evaluating the evidence and reaching a conclusion

• Corrective Actions

• Preserving your record

Why Investigate?

Why is it important to conduct an investigation?

Provides a defense

• Did the employer take reasonable care to prevent

the prohibited conduct?

• Did the employer take prompt corrective action?

Good Investigations Save You...

• Money

• Reputational Damage

• Staff effort, stress and distraction

• Reduction in employee morale

• Perpetuating bad behavior

Successful lawsuits lead to more lawsuits!

When to investigate?

• When is an investigation necessary?

• When information comes to light - from any

source - that relates to potential violations of

the law and/or company policies

• Can include formal complaints, ethics

line calls, and even office gossip

• Legal Obligations

• Practical Considerations

Investigation Goals

• What is the purpose of this investigation?

• Reveal the truth?

• Clear, defensible, well-documented resolution?

• Don’t forget the big picture

• Your obligation is to conduct a

thorough investigation and document

findings/corrective actions

Investigation Plan Checklist

✓ Who should do the investigation?

✓ What policies are implicated?

✓ Physical or written evidence to review

✓ Who should I interview, in what order, and

where?

✓ Interview preparation

✓ Conduct interviews

✓ Additional investigation work

✓ Did a violation occur? Remedial action?

✓ Documentation of findings

✓ Follow-up

The Investigator

• Who should conduct it?

• Consider time and resources

• Consider a third party to mitigate any perceived bias

• Investigator must be...

• Impartial

• Credible

• Thorough

• Discreet

• Effective as a potential witness in a trial

Know your Policies

• Who does our policy protect?

• Are employees aware of the policy?

• Where should violations be reported?

• Confidentiality obligations

• Consequences for violating a policy

• Retaliation

Gather the Evidence

• Complainant’s Personnel File

• Accused’s Personnel File

• Policies and Related Training

• Performance Management Documents

• Prior Investigation Notes & Reports

• Search Work Areas

• Documents retained by Supervisor(s)

• Other Physical Evidence

Conducting Interviews

• Who to interview

• Stick to the Facts

• Be Prepared & Take T-I-D-Y Notes

• Remember the Goal

• Remain Impartial

• Upjohn

Complainant Considerations

• Prepare an introduction for the interview

• “We take reports of wrongdoing very seriously. We will investigate thoroughly. We will keep this as confidential as possible and take appropriate action based on our findings. Retaliation is strictly prohibited.”

• Protect the Parties (Complainant and Company)

• Who else knows what happened?

• Has anyone else had a similar experience?

• Is there any physical evidence (i.e. notes, documents, etc.)?

• Has it affected your job performance?

• How would you like us to resolve this?

Assess the need for Interim Action

• Necessary to prevent further misconduct or retaliation

• Protect the Parties

• Complainant: Consider schedule changes, transfers, paid leaves (only if voluntary)

• Accused: Consider paid suspension or administrative leave (can be involuntary, but non-disciplinary)

• Maintain Confidentiality

Interviewing the Accused

• Prepare an introduction for the interview

• “The purpose of this interview is to ask you about allegations of workplace misconduct made against you.”

• Stress the importance of Confidentiality

• Ask for a general response to the allegations

• “This is your chance to tell your side of the story.”

• Only an investigation - Nothing will be decided until all information has been collected

• Warn against non-business contact with complainant

• Warn against retaliation

Interviewing Other Witnesses

• Stress importance of telling the truth

• Consider the questions

• Open-ended, factual questions

• What were they told by the complainant/accused?

• Other evidence or other witnesses?

• Confidentiality is required

• Warn against retaliation

• They are not entitled to follow-up information

Assess the Evidence

Is the evidence credible?

• Believable on it’s face

• Credibility of the original source

• Look for Inconsistencies

• Motive to Lie

• Corroboration/Supporting Evidence

• Past behavior

Are we done yet?

Additional investigation work:

• Circle back with complainant and accused

• Re-interview parties and witnesses about any new information

• Gather additional physical evidence

• Consult with legal counsel

• Organize notes and investigation file

• Summarize evidence

Reaching a Conclusion

Possible Investigation Outcomes:

1. Allegations Corroborated

2. Allegations Disproven

3. Investigation Inconclusive

Allegations Corroborated

● Inform Complainant & Accused

● Enact Corrective Measures

○ Stop misconduct

○ Ensure misconduct does not recur

○ Counter effects of misconduct on victim

Discipline Considerations

Discipline Should be:

✓ Swift

✓ Consistent

✓ A punitive warning & an expectation of future conduct

✓ Properly documented!

Allegations Disproven

• Inform Complainant & Accused

• Investigate potential underlying issues

• Provide assistance if necessary

• Consider Training

• Beware of retaliation claims!

Investigation Inconclusive

• Inform Complainant & Accused

• Ongoing monitoring

• Change reporting relationship

• Consider Training

How should I document my findings?

• Policy Provisions & Employee Acknowledgements

• Describe Original Complaint

• Describe Nature of Violation/Conduct

• Take T-I-D-Y Notes

• Summary of Evidence

• Investigation Findings and Conclusion

• Corrective Action Taken

• Follow-Up with Parties

• Post-Investigation Inquiries

Avoid Documentation Pitfalls

Q: What is the main cause of unfavorable litigation outcomes in

employment cases?

A: Lack of documentation

Ask yourself: Can I prove it if she denies it?

If not, do more!

Preserve your record! Keep records with HR or Legal and restrict access

Pulling It All Together

● Don’t forget the goals of the investigation

○ Reveal the truth

○ Lead to defensible, well-documented resolution of the complaint

● Be prepared and follow your plan - no improvisation!

● Follow-through and Follow-up

● If done right, company will have a solid basis for taking action and will stay out of court

Thank you!

MOTOROLA, MOTO, MOTOROLA SOLUTIONS and the Stylized M Logo are trademarks or registered trademarks of Motorola Trademark Holdings, LLC and are used under license.

All other trademarks are the property of their respective owners. © (year of publication) Motorola Solutions, Inc. All rights reserved.