October 24, 2013

CONDUCTING A WORKPLACE INVESTIGATION

A PRESENTATION FOR

PASCO

• Once an employer receives a complaint of harassment (or any unlawful employment practice), the employer has a duty to investigate and, if necessary, correct the behavior.

The Duty to Conduct an Investigation

Duty to Whom?

Complainant – investigation is a “reasonable step” to prevent discrimination, harassment, etc. Affirmative Defense if employee fails to

take advantage Accused – employer must have “good

cause” to terminate an individual for alleged misconduct Courts recognize negligent investigation as

separate cause of action

When to Investigate

Do I Need to Investigate This Claim?

Complaint Amounts to Unlawful Conduct

Additional Facts, Documents, or

Opinions/Experts Needed

Perform Investigation!

Employee Relations Issue.

Not Unlawful Conduct

Do Not Need Additional

Information

No Investigation Needed

Types of Claims Commonly Requiring Investigation

Harassment Discrimination Retaliation Workplace Violence Employee Theft

Requirements of Investigation

Most Important Characteristics

Conduct an investigation to arrive at good faith conclusion based on reasonable grounds supported by substantial evidence.

Cotran v. Rollins Huding Hall Int’l Inc. ; Silva v. Lucky Stores, Inc.

Begin promptly after receiving complaint Have a policy regarding investigations Provide both sides opportunity to present

position and contradict relevant statements

Allows for progressive discipline Designate well-trained individual to

investigate Base ultimate findings on objective

evidence Proper investigation differs by

circumstance

Preliminary Issues To Consider

Who Should Investigate?

Experience/Background Neutrality and Impartiality Approved by Both Parties

In writing Typically HR Personnel Inform Need to Know Persons

Documents/Evidence Needed

Personnel File Performance Appraisals Email Communications Prior Investigations Performed Voicemail/ Cell Phone Communications

Applicable Policies

Personnel Polices Handbook Memos Benefits Books

Collective Bargaining Agreements

Law

Interim Actions

Duty to take interim steps to stop alleged harassment, protect employees, organization property, or integrity of an organization during an investigation.

Bradley v. Dept. of Corrections & Rehab (2008); Swenson v. Potter (9th Cir. 2001)

Typically Involves Removing Accused Temporary Transfer Administrative Leave

Paid/Unpaid Contact Person/Return Process Notice NOT disciplinary

Proceed Carefully with Complainant

Witnesses

List of Witnesses Complainant Accused Suggested Witnesses

Is there a preferred order? Location of Interviews Written Statements Prior to

Interviews

Conducting the Investigation

Initial Meeting With ComplainantAsk Questions

5 W’sRepeated or IsolatedWitnesses or Persons ToldWritten Materials

Concl

ude Meeting

Thank ComplainantAnti-RetaliationConfidentialityProcessNo promises

Document

Writing from ComplainantIssue Confirmation Memo• Id

entify issues, investigator, and accused

• Outline Process

Meeting With Accused

Before meeting put together outline with facts

Put accused at ease Explain no decisions made yet Outline of process

If says complainant is lying ask for motivation

Ask for supporting documents and witnesses

Interviewing Witnesses

Keep in Mind Possible Motivations Explain the Process Stress Confidentiality

Inform Only to Extent Necessary Ask for Additional Information/Witnesses

Helpful Tips for All Interviews

Have a Checklist Prepare Opening

Statement Have Helpful

Documents Document Relevant

Facts Observe and Record

Demeanor/behavior

Open Ended Broad to Narrow Listen and Follow-Up Flexible Q’s Ask Hard Q’s Get Chronology No Leading Q’s

Prepare Effective Questioning

Assessing Credibility

To Do Immediately After Interviewee Leaves

Compare Demeanor to Typical Behavior Body Language Reactions to Allegations Did Witness Inspire Confidence Forthcoming?

Logical Consistency Chronology Common Sense

Preparing an Investigation Report

Contents of Report

Allegations Made and Relevant Facts Date Investigation Began and Completed Name of Investigator and Neutrality Name and Dates of Interviewees Key Factual Finding and Analysis Application of Guidelines (policies) Final Decision and Conclusion

Instituting Corrective Action

Disciplinary Actions

Options Available: Oral, Written, or Final

Warnings Separation or Transfer Demotion or

Reduction in Pay No Raise or Bonus Additional Training or

Monitoring Suspension (with or

without pay) Termination

Considerations: Notice Consistency Confidence in

Investigation Employee

History/Mitigation

Consider Who Should Be Involved In Making Decision

Must be Objective and Unbiased Staub v. Proctor Hospital, 131 S.Ct. 1186

(2011) – Employer can be held liable for actions taken by unbiased decision-maker if non-decision maker influenced the adverse action with his own discriminatory animus.

Corrective Measure – Reasonably Calculated to End Harassment

If first measure is not effective, more severe measures must be taken.

If employer’s actions do not stop unlawful conduct, they may not establish the affirmative defense.

Question is if behavior stopped Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992) did

not meet obligation where only held counseling sessions for harasser

Star v. West, 237 F.3d 1036 (9th Cir. 2001) did meet obligation where held counseling and changed shifts

Should be consistent with past measures

Meet With Complainant and Accused (Separately)

Complainant and Accused Explain Issues, Steps Taken, and Conclusions

Drawn Discuss Actions Being Taken Explain Appeals Process and Ability to Bring

New Info Notify in Writing Stress Confidentiality

Complainant Rights if any retaliation

Accused Anticipate Questions and Have Answers

Litigation Issues

Create Investigation File

Keep All Information for Investigation Separate

Create Final Investigation File Include

Written Communications from Complainant Issue Confirmation Memo Admin Leave Notice Investigation Summary Results and Notifications Supportive Notes and Documentation Written/Electronic Communications

Destroy all Drafts Mark Confidential

Protecting Attorney/Client Privilege

Telling your attorney facts does NOT make them undiscoverable

Address written communication to attorney

Write “Privileged and Confidential” Copy only people who need to know Do not share or discuss with others

Responding to Outside Agencies

Employee may file charge with DFEH, EEOC, Labor Commissioner, OSHA

Work with counsel Choose single person for all

communication with the agency Draft letter summarizing investigation

Privacy

Protect privacy of individuals as much as possible

Make all documents “Need to Know”

Create policies stating that there is no expectation of privacy at work

Question and Answer