October 30, 2019

PART 1:Conducting Effective

Investigations

PART 2:HR/Legal Update

or“Look Before You Leap!”

Presented by: Daniel R. Appelget and Richard F. Nugent

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Conducting Effective Investigations

By: Daniel R. Appleget

May Oberfell Lorber

Introduction – The Investigation Framework

Receive the complaintInitial meeting with complainant/alleged victimDetermine the nature of the complaintDetermine if internal investigation is neededPlan the investigationConduct the investigation

Review documentsReview physical evidenceInterview witnesses

Assess credibilityReport the results of the investigation

Facts only?Facts and recommendation?

Post investigation review/assessment of policies and procedures

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Reasons for conducting an investigation

What might prompt an investigationFormal or informal internal complaintsExternal complaints or allegations by stakeholders or customersResponding to a lawsuit, charge, enforcement action, or government investigationProactive assessment of exposure to liability

Types of employment issues that should be investigatedDiscrimination, harassment, and retaliation

Age, disability, race, color, national origin, sex, pregnancy, religion, pay, sexual orientation, gender identity, citizenship status, veteran status, FMLA

Health and safety violationsDrug and alcohol use in the workplaceWhistleblower allegations

Fraud, theft, regulatory violationsOther policy violations, misconduct, inappropriate behavior, or criminal activity

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External v. internal investigatorThe following factors may indicate that an external investigator should be utilized:

The complainant or accused works in Human ResourcesThe complainant asks that an outside person conduct the investigationComplaints involving alleged action by an executive level employeeComplaints involving retaliatory action for previous complaints of harassment or discriminationSecond/subsequent complaints of harassment or discrimination by the same complainant, even if the accused is a different personIf litigation or complaints by multiple individuals involving the same or similar conduct is strongly anticipated

Attorney-Client PrivilegeInvestigation materials could be discoverable

Employer may want to use the investigation as an affirmative defenseAttorney conducted investigation more likely to be privileged/work product

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Documents and physical evidence –types

Documents relevant to an investigation may include: Complainant’s personnel fileAccused’s personnel fileRelevant policies and proceduresPayroll/time recordsDepartment filesMedical records

Performance evaluationsJob descriptionsEmail communicationsPhotographsVideo/audio recordingsOther documents***

***Go where the investigation takes you!

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Documents and physical evidence – litigation hold

Issue litigation hold at the outset of the investigationIssue to all witnesses who may have potentially relevant evidenceIssue to IT personnelDescribe categories of information that must be maintainedExplain that deletion or destruction of covered information is prohibited

Subject to disciplinary action, up to and including terminationReissue litigation hold as necessary during investigation

Preservation of evidence is an ongoing obligation Pool of relevant witnesses can change during investigationPool of relevant evidence can change during investigation***Go where the investigation takes you!

This is important and not just a matter of course

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Witnesses - who to interviewComplainant (generally the first to be interviewed)Any likely witnesses to the alleged incidentThe accusedSecond interview of complainantSecond interview of the accusedComplainant’s supervisor

The accused’s supervisorCo-workersOthers in the same protected class (race/sex/age/etc.) as the complainant and who have worked with the accusedOther witnesses

***Go where the investigation takes you!

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Witnesses - confidentialityRequiring confidentiality (risky approach)

Requiring confidentiality of all witnesses – with the threat of discipline if he/she does not maintain it – is risky, based on current decisions from the NLRBEmployees must not be prevented from engaging in protected concerted activity (e.g., discussing terms and conditions of the job)

Requesting confidentiality (better approach)1. Confidentiality is necessary to protect the integrity of the investigation2. Confidentiality helps ensure that the Company receives trustworthy information in an atmosphere free from coercion3. Confidentiality allows the witness to stay focused on work, and not perpetuate rumor, speculation, distraction or promotion of people “taking sides” in the matter

Practice TipRequest confidentialityDo not promise confidentiality

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Witnesses– confidentiality (cont’d)

What if the complainant or a witness requests confidentiality?This is a very common issue Generally, investigations cannot be kept confidential between interviewer and intervieweeInvestigation may be privileged, but the details are not confidentialDetails must be divulged for purposes of the investigation reportDetails must be divulged to determine appropriate remedial action

Practice tipInform the witness that every effort will be made to treat sensitive information with appropriate discretion, but confidentiality cannot be promised

Employer’s obligation to take remedial action trumps confidentiality

NLRA ConcernsInvestigators must treat carefully when balancing a legitimate business need for confidentiality versus non-supervisory employees’ right to discuss the terms and conditions of their employment with their co-workers

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Conducting the interview –location and technique

Conduct the interview in a private and safe location Interview each witness separately in a location where the discussion will not be overheard by other witnesses, the accused, or any other unauthorized persons“Safe” = Safe for the witness AND safe for the interviewer

If possible two investigators should be present at interviewsTwo members of managementOne management, one HROutside investigator

Take copious notesDocument what you say to the witnessDocument what the witness says to you Sign, date, and save all notes and materials from the interview

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Conducting the interview –what to ask

Provide an introductionSummarize the incident and purpose of the interview Address confidentiality up front

Gather the facts Ask open-ended, non-judgmental, fact gathering questions

Who, what, when, where, how, why?Avoid conclusory terms (e.g., victim, illegal, harass, fraud)Probe every allegation in the complaint/chargeFocus on the witness’s answers and ask follow up questions

***Go where the investigation takes you!Explore the effect of alleged harassment on each witness

Psychological, emotional, physical, financial, reputational, etc.Review relevant documents and policies with the witness

Ask for copies of any documents referenced by the witness (e.g., text messages)12

Conducting the interview –credibility

Factors used to assess credibilityMemoryPerceptionVeracityCorroboration (or lack thereof)Potential bias of witnessesConsistency of accountsPrior misconduct (or lack thereof)Plausibility of accountsEffect on person being interviewed

Observe physical reactions and non-verbal communicationRecord your observations (what you heard and what you saw)

Good: The interviewee appears to be lyingBetter: The interviewee appears to be lying because...

The witness will not make eye contact, is red-faced, is sweating, etc.

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Conducting the interview –conclusion

Conclude the interview“Is there anything else you think I should know?”Encourage post interview follow-up (if appropriate)

Reaffirm purpose of investigation Explain that upon completion of the investigation, the company will attempt to determine what occurred, and will take appropriate action based on its determination

Communicate results of investigationShare results and consequences with victim and accusedDo no share results with other interviewees/witnesses

Safeguard against retaliationReaffirm anti-harassment policyDistribute anti-harassment policy if necessary

Request confidentialityProtect the integrity of the investigation

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Documenting the investigationMemorialize your notes immediately after the interview

Summarize facts and observations This is your opportunity to speak directly to the jury!

Determine if you should prepare an investigation reportHave you been asked to draw conclusions?Should the report be oral or written?

Components of Investigation ReportDescribe the complaint/conduct that triggered the investigationList witnesses interviewedList documents reviewedSummarize findings of fact

Attribute statements to witnesses; do not treat as established factsNote behavior or statements that bear on credibility of intervieweeProvide recommendations (if appropriate given scope of investigation)

Appropriate remedial actionPolicy/procedure changes

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Remedial actionFactors in determining appropriate remedial action

The policyPrior conduct, if anyPrior discipline of the accusedLevel of harassment

Type of conductFrequency of conduct

Prior disciplinary “precedent” for identical, similar, or analogous misconduct

Research company precedent if necessaryBe consistent…or document the reason for deviation

Political and operational considerations within the organizationPublic and employee relations issues

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Policy and process considerations

Was the company harassment policy adequate?Were employees aware of the terms of the policyWas the policy’s complaint procedure adequate

Did the investigator uncover other issues that need to be addressed?Implement changes to policies and procedures where appropriateIs additional harassment/discrimination training necessary?

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Questions?

Thank you!

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HR/Legal Updateor

“Look Before You Leap!”By: Richard F. Nugent

May Oberfell Lorber

EEOCADA (Vision)Settlement with CITGO Petroleum Corp. (9/18/19)CITGO withdrew job offer to an operations tech trainee based on post-offer medical exam showing blind in 1 eye. Ability to see out of both eyes was not job related and consistent with business necessity.Settlement terms:

$162,500.00Update policies on ADA accommodations Training, record-keeping and reporting requirements

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EEOCADA Lawsuit filed against Black Forest Décor, LLC (9/26/19)Employee notified BFD she would require surgery in coming month but released to work until surgery. Employer refused to allow her to work and placed on leave due to fears of possible liability. 3 weeks later, BFD terminated employee for excessive absences.EEOC St. Louis Regional Attorney: “Many workers are entitled to the ADA’s protections when they are fully able to work. Employers cannot rely on their own assumptions and biases when deciding how to treat employees in these situations.”

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EEOCADA Lawsuit against Home Service Oil Co. (9/26/19)Applicant was a customer with a facial tic. Store Manager made a derogatory comment to Assistant Manager about applicant and threw application in trash.EEOC St. Louis District Office Director: “Refusing to hire an individual with an obvious disability based on his or her appearance is precisely the type of unlawful/conduct the ADA was designed to prevent.”

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EEOCADA EEOC filed suit against Pirtek USA, LLC (9/27/19)10 year employee terminated after being hospitalized with pancreatitisEmployer called worker a “liability”EEOC: “Employment decisions based on stereotypes or unreasonable assumptions relating to disability are unlawful…”

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EEOCADA Settlement with Ford Motor CompanyIndianapolis District Office (10/1/19)Kentucky truck plant failed to hire applicants due to their disabilitiesCriteria NOT “job-related and consistent with business necessity”Failure to use results of post-offer, pre-employment medical exams in accordance with ADA$537,760.00 and training to certain H.R. department employees

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EEOCADA Wal-Mart Stores East, LP (10/2/19)Applicant born with right arm ending at elbowApplicant had previous warehouse experience lifting items up to 200 lbs. without using a prostheticApplicant asked if she needed an accommodation to take a physical assessment test. She declined.Wal-Mart denied opportunity to take test without prostheticEEOC: “…clear example of an employer jumping to a conclusion based on an applicant’s obvious disability…”

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EEOCTitle VII – SexEEOC filed suit September 11, 2019 (St. Louis)

Failure to hire/retain one of sales staff … the sole female salespersonSuccessful sales record and winner of customer service award“This is not a lady’s job yet”

EEOC Regional Attorney: “Federal law has guaranteed equal employment opportunity for women for over 50 years, but some employers still say, ‘not yet’…”District Director: “Making hiring decisions based on sex is not only unlawful, it’s bad business”

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EEOCTitle VII/Pregnancy Discrimination ActDecember 2018 Settlement with Cato Corporation (leading retailer of women’s fashion and accessories) by Chicago and Philadelphia Offices of EEOC.

Allegations:Denied reasonable accommodations to pregnant employees and those with disabilities Forces unpaid leaves of absences and/orTerminated disabled employees

Settlement:$3,500,000.00 Update reasonable accommodation policesCompany-wide training for over 10,000 employeesPeriodic reports to EEOC (for 3 years) on responses to requests for reasonable accommodation

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EEOCTitle VII/Pregnancy Discrimination ActJuly 25, 2019 Settlement (Indianapolis District Office)

Employer allegedly forced pregnancy employees onto unpaid leave, andRefused to reasonable accommodate pregnancy – related lifting restrictions when non-pregnant employees with restrictions were routinely granted light duty$120,000.00, comply with PDA, live training, develop a written policy to be distributed to all employees and annual reports to EEOC for 3 years.

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Carmike Cinemas Inc. LawsuitEqual Pay Act and Title VII Anti -RetaliationU.S. District Court for Middle District of Georgia (Jury Verdict 9/18/19)Carmike paid “suitable comparators” differently, i.e. male employee more than female employee performing same/similar workAlthough the male held a higher level title and they worked in different departments, they both reported to the same supervisor, required to attend same weekly director-level meetings and had power to hire and manage personnelVerdict for Female Employee:

$67,118.00 lost pay$100,000.00 emotional pain$1,000,000.00 punitive damages

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The Newseum LawsuitEqual Pay Act and Title VIIU.S. District Court for the District of Columbia (9/23/19)The Newseum has to go on trial to face allegations of female director being paid less than males and otherwise discriminated against based on sexCourt said:

Three male directors worked under same supervisor and had some what different duties does not mean they aren’t suitable pay comparators“High-level managers working in discrete areas of organizations will necessarily have different responsibilities from one another, and courts should not require so much detail about similarity at the front end of a lawsuit…”

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EEOCTitle VII (Race)

Indianapolis District Office EEOC filed suit in June 2019 against a Troy, Michigan company based on retaliation

Black employee filed charge when denied promotion3 months later, employee amended charge to include discriminatory pay disparitiesShortly after, employees disciplined (suspension) when similarly situated employees who had not opposed discrimination, were not disciplinedEEOC Trial Attorney: “…a clear violation of the board anti-retaliation provisions of federal civil rights laws”

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Resolute Acquisition Corp. Lawsuit

Title VII – Race and Sex

U.S. District Court for the Southern District of Indiana (filed 8/16/19)

Black lesbian hospital employee alleges she was terminated because of her race and sex orientation

Plaintiff and other employees were involved in an altercation between patient-residents

Non-black heterosexual employees also involved in situation were not terminated

Key: Consistent, non-discriminatory application of discipline for violation of employer’s rule, policies, and/or practices.

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EEOCRace

Settlement with Belle Tire Distributors, Inc. (9/24/19)

Employee complained to H.R. and was fired within 48 hours

Store Manager received a written warning for “shop talk” and “horseplay”

Store Manager made derogatory, race-based comments to only African American employee along with demeaning physical contact“Cricket” and “Dumb-Dumb”“…blacks don’t get Saturday’s off.”Slapping the head or shoving

Employee complained to H.R. and was fired within 48 hours

Store Manager received a written warning for “shop talk” and “horseplay”

Detroit Field Office/Indianapolis District Office

Settlement Terms:$55,000.00, redistribution of anti-discrimination policyAnnual training for H.R. and ManagersReports to EEOC

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EEOCTitle VII Intimidation and Retaliation

Settlement with 28 Event Space (9/26/19)

Owner attempted to bribe ($ and a used limo) a part-time employee to not testify in a race discrimination case. When employee refused, job was threatened and removed from work schedule.

$15,000.00 and other compensation, develop anti-discrimination policies, training for owner and employees, and provide reports to EEOC for 3 years.

EEOC: “Retaliation…is something that EEOC takes very seriously. Employees must be able to report discrimination and provide truthful testimony to federal investigators without fear of intimidation or losing their jobs.”

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Montefiore Med. Ctr. Title VII CaseRace and National Origin

S.D.N.Y. (9/29/19)

Black Jamaican nursing attendant fired for:a. working an overtime shift during a scheduled leave period andb. Failing to clock-out on 1 occasion

Court:a. No policyb. No evidence

Take -away: Follow policy, procedures and rules consistently“Patience Is A Virtue.”

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Home Depot ADEA Lawsuit

U.S. District Court (S.D. California) in July 2019 ruled lawsuit will go to trialFactors:

Repeated comments about getting rid of “old” employees“Wave” of disciplinary notices for 47 year old manager who has only been disciplined once in previous 20+ years“Let’s performance him out”Instructions to convince older workers to retire or quit

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EEOCSeptember 6, 2019 EEOC Lawsuit (ADEA)

EEOC alleges illegal retaliation when an employer terminated an employee who alerted management that department head instructed staff to give hiring preference to millennials over older applicantsRetaliation is considered “as” or more serious than the underlying issue by EEOC“Chilling Effect”

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EEOCADEA – RetaliationSettlement with Wateford Public School System (9/20/19)Teacher laid off. Teacher filed discrimination charge with EEOC. School district recalled other teachers and hired other teachers in same subject matter area. Teacher alleged retaliation.EEOC (Detroit Field Office of Indianapolis District Office) filed suit in U.S. District Court for Eastern District of Michigan alleged violation of anti-retaliation provision of ADEA.Settlement:

$107,000.002 ½ year consent decree providing injunctive relief, notice posting and training on ADEA

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Louisiana-Pacific Corp. CaseSeptember 6, 2019 EEOC Lawsuit (ADEA)Decision (unpublished) of the Sixth Circuit Court of Appeals6th Circuit reversed summary judgment for L-P (9/24/19)Facts:

58 year old Trade Show Manager28 years of serviceWithin 5 months, supervisor made at least 6 offensive comments including “grandma” and “little old lady”Terminated despite reviews stating her performance was effective and satisfactoryAfter termination, trade show responsibilities performed by employees substantially younger

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DOL

Intermittent LeaveAugust 8, 2019

Employee can take intermittent, unpaid FMLA leave because employee is attending meetings to make care arrangements for a child with a serious health condition

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DOLSeptember 10, 2019

Paid leave benefits and FLMA leave must run concurrentlyConsider “erring” on the side of providing FLMA paperwork to any employee who indicated possible need for FMLA leave

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Dollar General Store FMLA Lawsuit

Eighth Circuit Court of Appeals October 3, 2019Employee texted and met in-person with supervisor about need for LOA for mental healthSupervisor: LOA not available, do your job and not be sick all the time.Court: Communications didn’t use “magic words” disability, or accommodation but employee may have put Dollar General on notice of FMLA and state law rights.

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I-9s

Decision of DOI Administrative Law Judge (9/11/19) Cleaning service company failed to complete or improperly completed I-9 forms for 655 employeesICE proposed a fine of $1,200,000.00ALJ imposed a fine of $1,100,000.00Employers MUST complete I-9 forms for all employees within three days of hire

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Overtime Rule

U.S. Dept. of Labor, Wage & Hour Division (9/24/19)Final Rule effective 1/1/20Key Point for Most Employers:

Standard salary level raised from $455 to $684 per week ($35,568 per year)

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Gallup Survey-Unions

Survey released August 28, 2019 (in anticipation of Labor Day)Approximately 64% of Americans approve of labor unions+16% since 2009 lawBe an “Employer of Choice”!

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Charles Hughes, Consultant

“No Labor Union has ever captured a group of employees without the full cooperation and encouragement of managers who create the need for unionization…”

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Other

Always sign and date documents (e.g. discipline, meeting notes, investigatory reports, etc.)Always follow policy and/or practice of progressive discipline. Failure to take and/or properly document discipline may cause serious issues.If an employee expresses any indication that the employee may need time-off from work for some reason that might be covered by the FMLA, give the employee FMLA paperwork.Training…Business Issues To Be Resolved.

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Questions?

Thank you!

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Daniel R. Appelget - Senior Associate Dan is a member of May Oberfell Lorber’s Labor and Employment

Team. His practice is focused on employment law defense, commercial

litigation, and appellate advocacy. As an experienced litigator, Dan has

represented employers in state and federal trial courts, and before

administrative agencies, including the EEOC, the Indiana Civil Rights

Commission, the South Bend Human Rights Commission, and the

Indiana Department of Workforce Development. Dan has also

successfully defended employers in cases on appeal in front of the

Indiana Court of Appeals and the United States Court of Appeals for the

Seventh Circuit. As a counselor, Dan provides strategic guidance to employers and businesses regarding legal issues

related to human resources and employment law compliance. Dan also administers group training for employer-

clients to address practical and substantive issues arising under Title VII, the ADA, the ADEA, the FMLA, and

other federal, state, and local laws. Dan is a native of St. Joe, Michigan, he enjoys rock-and-roll music, family,

friends, and fellowship. (574) 243-4100 dappelget@maylorber.com

Practice Areas

Litigation

Labor & Employment

Corporate & Business

Civic Involvement

Seasons Counseling Center Board of Directors, Board Member

Robert A. Grant Inn of Court, Member

Admissions

State of Indiana

United States District Court, Northern and Southern Districts of Indiana

United States Court of Appeals for the Seventh Circuit

Education

B.A. in Legal Studies from Grand Valley State University; cum laude, 2009

J.D. from Valparaiso University School of Law; summa cum laude, 2013

Richard F. Nugent, Jr. - Partner

Rich’s practice at May Oberfell Lorber is centered on providing

management with practical, effective advice on Human

Resources legal matters. Rich’s experience in Human Resources

and in the labor and employment law practice provides a unique

perspective from which he advises his clients. Rich has

practiced law with May Oberfell Lorber for over a dozen years

and as the first College Counsel at Saint Mary’s College for five

years. He has, also, worked in Human Resources for almost

thirty years including Miles Laboratories - Bayer, the University

of Notre Dame and Saint Mary’s College.

(574) 243-4100

rnugent@maylorber.com

PERSONAL SNAPSHOT

• Married over 40 years

• Father of three, grandfather of two

• Loves living by Lake Michigan

• Plays golf

Admissions

• State of Indiana

• State of Michigan

• United States District Court, Northern District of Indiana

Education

• B.A. in American Studies from University of Notre Dame, 1977

• J.D. from Valparaiso University School of Law, 1980

Practice Areas

• Labor & Employment

• Corporate & Business

Professional Achievements

• Negotiated collective bargaining agreements on behalf of management with various

unions (e.g., USWA, UAW, ILWU, and others)

• Represented management in union organizing campaigns

• Represented management in dealing with various governmental agencies (e.g., EEOC,

ICRC, NLRB, etc)

• Conducted management training programs across the United States on human resource /

legal topics

• Completed mediation training

Professional Affiliations

• Indiana State Bar Association

• State Bar of Michigan

Civic Involvement

• Former member, Marian High School School Board

• Former member, Saint Pius X Parish Council (Granger, IN)

• Former member, Saint Basil Parish Finance Council (South Haven, MI)

• Former member, Prairie Vista Elementary School Parents Council

• Former member, Youth Services Bureau Board

• Former member, Madison Center Board

• Former member, Early Childhood Development Center (ECDC) Board