workplace investigations 101
TRANSCRIPT
Law Offices of Diana MaierEmployment and Privacy Attorneys
www.dianamaierlaw.com
Workplace Investigations 101
Presented by:
Diana Maier & Beth Arnese
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TODAY’S SPEAKERS
Diana Maier received her J.D. from Stanford University Law School in 1998. She has been practicing law for 18 years, 15 years in employment law. In addition, Diana practices privacy law and is IAPP certified in both United States and European privacy law (CIPP-US/E). Diana also conducts workplace investigations in Spanish and English.
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TODAY’S SPEAKERS
Beth Arnese received her J.D. from UCLA Law School in 2005. She practiced law for over 10 years, at both large firms and for the public sector, before joining the Law Offices of Diana Maier in 2016. She specializes in litigation as well as employment and privacy law. Beth also conducts workplace investigations.
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WEBINAR OVERVIEW
Topics We’ll Discuss:
• When to investigate
• How to prepare
• How to interview
• How to prepare a written report
• What to do after the investigation
• Best practices
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WHEN DO YOU NEED TO CONDUCT A WORKPLACE INVESTIGATION?
• Absolute duty to investigate: claims of discrimination, harassment, retaliation, whistleblowing complaints, workplace violence, and accidents/safety violations.
• Suggested: demand letters, lawsuits, theft, other misconduct; violations of workplace policies; when someone uses “the magic words” of the above terms, even if using them incorrectly.
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WHY DO YOU HAVE TO INVESTIGATE?
• Under California and federal law, employers have a legal duty to take “all reasonable steps” to prevent harassment, discrimination, and other unlawful employment practices. Govt Code Section 12940.
• An investigation is considered one of the best “reasonable steps” an employer can take to prevent illegal activity.
• Could create an independent cause of action if the underlying harassment actually occurred. Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280.
AS A RESULT.....
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WHAT TRIGGERS THE DUTY TO INVESTIGATE?
• If you have knowledge of potential harassment, discrimination, etc., an investigation is the best way to go.
• A complaint does not have to be submitted in writing or through HR or the formal complaint process your company has.
• May include off-duty conduct.
• Bottom line is that it’s almost always a good idea to investigate workplace complaints.
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BENEFITS OF AN INVESTIGATION (UNDER CALIFORNIA LAW)
• An investigation may help prevent or reduce liability for harassment claims (can limit damages to date employee made complaint).
• Can give companies a good faith basis to take adverse employment action against a wrongdoer.
• An investigation gives you mountains of valuable information about problems in the workplace, problem employees, practices that you might not be aware of, current workplace climate, other legal issues that might be brewing, etc.
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BENEFITS OF AN INVESTIGATION (UNDER FEDERAL LAW)
An employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two elements:
1. The employer exercised reasonable care to prevent and correct promptly any harassing behavior (this is where the investigation helps).
2. The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Faragher v. City of Boca Raton, 524 U.S. 774 (1998) Ellerth v. Burlington Industries, Inc., 524 U.S. 742 (1998)
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WHAT HAPPENS IF YOU DON’T INVESTIGATE?
• The complaining party may be able to show that your company failed to prevent harassment/discrimination from occurring or ratified unlawful conduct. Little v. Windermere Relocation, Inc., 265 F.3d 903, 913 (9th Cir. 2001).
• They may have independent cause of action for failure to prevent harassment/discrimination, if the underlying harassment/discrimination did actually occur.
• They may also use the lack of an investigation to argue for punitive damages.
• If the complaining party files a lawsuit, they can use the lack of an investigation to make the company look incompetent/uncaring/bad. They may hire an expert witness to challenge the adequacy of the investigation.
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ATTORNEYS AS INVESTIGATORS
• In California, a third-party investigator must be a licensed private investigator or a licensed attorney.
• An investigator may be called as a witness.
If an attorney provides ongoing advice and counsel to a company, that attorney might be considered to be biased in the investigation.
Attorney may lose attorney-client privilege in the investigation.
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INTERNAL PERSONNEL AS INVESTIGATORS
• Internal company personnel can also investigate (not required to be an attorney as in a third-party investigation).
• If you perform an investigation in-house, make sure the investigator is truly neutral (and qualified to do the investigation).
• Has the company trained the investigator? Has the investigator completed training outside the company by a reputable investigations association like AWI? Does the in-house investigator have any relationship with/connection to the individuals in the investigation?
• Have in-house counsel oversee the investigation so that you can claim privilege if needed.
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ETHICAL ISSUES TO UNDERSTAND
• If an attorney handles the investigation, they can be prohibited from representing the client in a subsequent litigation because they might be a fact witness in the case.
• Attorneys do not have an attorney-client relationship with the witnesses.
• Attorneys should advise the people they are interviewing that they cannot guarantee that information discussed during the interview will remain confidential. “As confidential as possible” is a good term to use.
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PRIVACY ISSUES
• The investigator should document what they are doing in the investigation (i.e., reviewing emails, voicemails).
• Companies should have policies stating that an employee does not have a complete expectation of privacy at work, particularly regarding company email, voicemail, lockers, desks, etc.
• The policies should also say that the company has a right to inspect all company-owned equipment, anything created using company hardware or software, or anything created on company time.
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BEFORE THE INVESTIGATION: PREPARATION
• Gather documents, including any applicable policies/rules.
• Establish a contact (who is not involved in the investigation) at the company who will set up interviews.
• Prepare a witness list (determine the order of witnesses - typically interview the complainant first and the alleged wrongdoer second).
• Prepare outlines of topics to address.
• Determine the location of the interviews.
• Start right away.
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ADMONITIONS TO THE PEOPLE YOU’RE INTERVIEWING
• Brief summary of the investigation issue
• Summary of the process
• You will limit disclosure to those who “need to know,” but you cannot guarantee confidentiality. Likewise, ask them not to discuss what you’ve talked about with anyone (this can be tricky).
• Explanation that retaliation based on participation in the investigation is not allowed
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INTERVIEWS
• Ask the witnesses who else would have information.
• Remind interviewees that they should not retaliate because of the investigation. If they feel they are retaliated against, they should report it right away.
• Other considerations: taking notes (computer vs. notebook), recording the interviews.
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HOW TO EFFECTIVELY INTERVIEW
• Start with open-ended questions.
• Softballs are a good warm up: ask about background, etc.
• Move to the specific situation that is the subject of the investigation.
• Probe witness with follow-up questions, ask about knowledge of any relationships between complainant and alleged wrongdoer.
• Ask if there are other witnesses with information, find out about supporting documents.
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HOW TO EFFECTIVELY INTERVIEW, Cont.
• Ask if there’s anything else the witness thinks the investigator should know.
• Consider letting the complainant know that you will come back with the accused’s side of the story and ask them follow-up questions so they don’t feel like it’s a case of the victim becoming the accused.
• Make credibility assessments (this is why it’s good to interview in person).
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WHERE TO CONDUCT THE INTERVIEWS
• Ideally, in a private office.
• If there is no privacy in the workplace (i.e., no offices or only offices with glass), consider conducting interviews off-site.
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NOTE-TAKING DURING INTERVIEWS
• Take very detailed notes.
• Include only facts. For assessing credibility and other non-factual issues, use a different document.
• Put the date on your notes.
• Write down information about all the documents you provide to or receive from the interviewees.
• Consider taking notes for yourself on decisions about who to interview and not interview or other judgment calls you make during the investigation.
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WITNESS STATEMENTS
• If possible (there is time and inclination by witness), confirm accuracy of notes and obtain initials.
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STEPS TO TAKE AFTER INTERVIEWS ARE DONE
• Make sure you interviewed everyone with information (this is a judgment call based on how much money the company is able to spend on the investigation, etc.).
• Consider whether you need to ask the complainant or alleged wrongdoer any additional questions, based on what you learned from the other interviewees.
• Follow up with any witness where you have additional questions because of subsequent information you learned.
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WHEN DO YOU WANT A WRITTEN REPORT?
• In most cases, companies will want a written report.
• If the investigation takes place after litigation has commenced, you may not want a written report (because it will be discoverable in litigation).
• If you’re going to take adverse action, written report may be helpful.
• If you’ve got a situation of liability for employer, a written report can be a negative.
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DRAFTING THE REPORT
• Outline all of the complainant’s allegations.
• Include the facts, not legal analysis. Don’t make legal conclusions; this is what standard counsel is for.
• Include investigator’s assessment of credibility of witnesses, if appropriate.
• Set forth investigator’s conclusions (this can be harder than it sounds).
• Consider informing the complainant of conclusions reached and action taken.
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CORRECTIVE ACTION FOLLOWING THE INVESTIGATION
• The investigator should not be involved in the decision of what to do.
• If harassment or discrimination took place, the employer must remedy the situation, including:
Termination
Discipline (suspension without pay, written warning)
Training
Counseling
Transfer, demotion, reduction in pay
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SOME CONSIDERATIONS
• What has the company done in the past in similar circumstances? (Consider whether this action is consistent.)
• Has the alleged wrongdoer done anything similar in the past? Has the alleged wrongdoer been truthful?
• Have other people exhibited conduct that the alleged wrongdoer is accused of?
• Is there anything in the company’s policies about this?
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OPTIONS FOR THE COMPLAINANT (IF DISCRIMINATION OR HARASSMENT TOOK PLACE)
• Paid leave
• Company-paid counseling
• Transfer (if they want one)
• Severance package with release (if they want this)
• Payment for counseling, medical bills, etc.
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INVESTIGATION BEST PRACTICES
• Thorough (interviewing all appropriate witnesses, gathering appropriate documents)
• Prompt
• Well-documented (by a report or with complete and accurate notes)
• Confidentiality protected to extent possible
• Results communicated to victim and alleged harasser
• Corrective action taken
• Unbiased
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• Law Offices of Diana Maier’s “Key Ingredients for Workplace Investigations,” available at http://dianamaierlaw.com/key-ingredients-for-workplace-investigations/
• Law Offices of Diana Maier’s “Workplace Investigations: Why Hire an Attorney Investigator,” available at http://dianamaierlaw.com/workplace-investigations-why-hire-investigator/
• Law Offices of Diana Maier’s “Workplace Investigations and the Fair Credit Reporting Act (FCRA),” available at http://dianamaierlaw.com/investigations-word-on-fair-credit-reporting-act-fcra/
• Practice Pointers for Workplace Investigations in California, https://www.shrm.org/legalissues/stateandlocalresources/pages/practicepointers.aspx
• Association of Workplace Investigators, http://www.aowi.org
RESOURCES
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DISCLAIMER: The information contained in this presentation has been prepared by the Law Offices of Diana Maier and is not intended to constitute legal advice. The Firms have used reasonable efforts in collecting, preparing, and providing this information, but do not guarantee its accuracy, completeness, adequacy, or currency. The publication and distribution of this presentation are not intended to create, and receipt does not constitute, an attorney-client relationship.
COPYRIGHT © 2016, Diana Maier and Beth Arnese. All rights reserved.
THANK YOU FOR LISTENING
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CONTACT INFORMATION
Law Offices of Diana Maierwww.dianamaierlaw.com
Diana Maier415-515-1707
Beth Arnese415-283-8970
For attorneys seeking MCLE credit:
Email your bar number to Lauren McMahon at