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Workplace Investigations:How the Employer Should Do Them and
How the Plaintiff Can React to Them
Jennifer M. Trulock
University of Houston Law FoundationAdvanced Employment Law
June 2007
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Picking Your Investigative Team Investigators to Use
The right "investigative temperament"
Call "central casting"
Lawyers--Maybe, but think through the evidentiary and privilege issues
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Investigators NOT to use
The accused
Employees with vested interests in outcome
Employees lacking restraint
Employees with the wrong personality
Former law enforcement personnel
HR representatives--some
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Train Investigators to Develop the 5 Major Types of Evidence
Direct Evidence
Circumstantial Evidence
Anecdotal Evidence
Statistical Evidence
Comparative Evidence
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Things to Do Before the Investigation Begins
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Suspend the Employer's Record Retention Policy as to any Possibly Relevant Documents/Information
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Collect, Preserve and Examine All Computer Resources
Computer Network Removable disks and CDs PCMCIA Cards Personal Digital Assistants Temporary Files (including Internet files) Swap Files Thumb drives, external hard drives Metadata Audit trails, computer logos and access lists Cache files, browser and cookie histories Tape back-ups
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Promptly Invoke the Attorney-Client Privilege Anticipate and Address "Potential Conflict" Issue
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Clarify Whom the Investigating Lawyer Represents
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Reminders To Employee Witnesses:
No Retaliation
No Promise
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Identify and Isolate All Potentially Applicable Policies
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Anticipate "Ex Parte" Communications
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General Considerations for All Investigations
Investigate Complaints Promptly and Thoroughly Questions to Ask in Harassment Cases
Were the sexual advances welcomed? What is the complainant's attitude? What is the complainant's emotional character? What do we know about the accused? Is the complaint late?
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Special Considerations Relative to Union Settings
Johnnie's Poultry Statement
Weingarten rights
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Privacy Concerns Raised by Organizational Investigation Techniques
Drug Testing Polygraph Testing Workplace Searches Custodial Interrogations
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Privacy Concerns Raised by Organizational Investigation Techniques
Surveillance, monitoring, eavesdropping, wiretapping
Hidden cameras
Monitoring of computer operations
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Privacy Concerns Raised by Organizational Investigation Techniques
"Informers," "spies," or "plants"
Lawyer participation in deception by undercover investigators
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Privacy Concerns Raised by Organizational Investigation Techniques
Fair Credit Reporting Act Issues
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Five Management Rules of Thumb(and One Suggestion)
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1. Discourage Electronic Mail Communications
Informality of electronic mail results in imprecise/incomplete inquiry and (possibly) bad advice
Confidentiality of electronic communications may not be assured
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2. “No Good Deed Goes Unpunished”
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3. “Trust Everyone . . .But Cut the Cards”
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4. “Treat Like Cases Alike; Treat Different Cases Differently”
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5. “Assume Everything is ‘On the Record’”
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One Suggestion:
When In Doubt, Call Your Lawyer.
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NEW YORKWASHINGTON
DALLASHOUSTONAUSTIN
LONDON MOSCOW
RIYADH DUBAI HONG KONG