workplace investigations for june 15, 2010 presented by: michael j. soltis christina feeny and frank...
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WORKPLACEWORKPLACEINVESTIGATIONSINVESTIGATIONS
forfor
June 15, 2010June 15, 2010
Presented by:Presented by:
MICHAEL J. SOLTIS MICHAEL J. SOLTIS CHRISTINA FEENYCHRISTINA FEENY
ANDANDFRANK RUDEWICZFRANK RUDEWICZ
[email protected] | [email protected] | jacksonlewis.com [email protected] | [email protected] | Thomsonreuters.com
[email protected] |bdoconsulting.com [email protected] |bdoconsulting.com
WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Why Investigate?
• Duty to Do So• Faraghar / Ellerth• Kolstad v. ADA• Employee Morale
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Plaintiff’s Mantra
• An Incompetent Investigator…• Did an Ineffective Investigation• Of Course, Reached the Wrong
Conclusion• What Else Would You Expect?
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Credible and Defensible
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
The Investigative Plan• Identify goals and objectives.
• Prioritize the steps to be taken.
• Set timetables.
• Covert versus overt.
• Choose the appropriate strategies and techniques– Digital Forensics, Field Interviews, Database and
Internet Research, Surveillance, Sting, Etc.
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Investigative Goals & Objectives
• Developing leads, facts, intelligence and general information:– about the issues in dispute– going to the credibility of witnesses,
potential witnesses and evidence– obtaining critical evidence
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Investigative Plan
• Elements of the violation– What are elements needed to establish
the violation?• Legal/criminal• Policy Violations• Procedural violations• Administrative violations
• Identify the targets of the investigation• Suspect known?• More than one suspect?
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Investigative Plan
• Assign the appropriate investigator– Any improper relationship?– Any known bias?– Should outside personnel be involved?
• Conduct interviews/collect facts– Ensure confidentiality of process– Maintain integrity of evidence and
investigation
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Investigative Plan
• Review information and verify– Compare information– Identify gaps
• Documentation– Restrict dissemination
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Investigative Plan Goals & Objectives
• Verify the occurrence– Rumors?– More to the story?– Any physical evidence?– Is this possible?
• Identify the alleged violation– What exactly occurred?– Confirm the allegation or is it another
offense?
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Investigative Approaches
• “Quiet” (covert).
• “Visible” (overt).
• Transition from quiet to visible inquiries.
• Public relations.
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Tools Available in an Investigation
• The Client
• The Law Firm
• Public Information– commercial databases– private and proprietary databases– public records– the Internet
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Tools Available in an Investigation
• People as sources
• Interviews of witnesses
• Surveillance
• Forensics
• Public relations
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Interviews of Witnesses• Who may be interviewed?
• Practical considerations
• Different approaches for interviews
• Tape recording interviews
• Eavesdropping and bugging
• Demands for payment and other requests
• Hiring former employees of an adversary
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Surveillance• During the initial phase of the
investigation
• Covert
• Dangers inherent in this technique
• Costs
• Client Expectations15
WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Digital Forensics• Desktop and Laptop Computers
• Servers
• Mobile Telephones
• Blackberry Devices
• Other Digital and Digital Media Devices
• Key Stroke Monitors
• Developing Deleted Material
• Establishing Downloads and Theft
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Forensics• Forensic Accounting
• Fraud Auditing
• Stings
• Polygraphs
• Examinations of Trash
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Professional Licenses
• Retain only licensed investigators – performing investigations without a license is a crime in some states
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
• Competence
• Corroboration
• Common Sense
3 Cs of Investigative Management
WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Myriad of PotentialPrivacy Issues
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Searches
• Desks, Files, Lockers• Cars• Mail• Strip Searches• Testing• Off-the-Job Conduct• Undercover Investigators
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Electronic Privacy Issues
• Quon v. City of Ontario (Awaiting S.Ct. Decision)
• E-Mail / Internet Issues• Eavesdropping• Recording Phone Calls• Electronic Monitoring• Taping
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Oh, the Places You Will Go…
Causes of ActionInvolving Investigations
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Causes of Action Involving Investigations
• Invasion of Privacy• Constructive Discharge• Defamation• False Imprisonment• Intentional Infliction of Emotional
Distress• Loss of Consortium• And More…
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Key Retaliation Cases Relating to Investigations
• Burlington Northern & Santa Fe Railway Co. v. White (S.Ct 2004)
• Crawford v. Metropolitan Gov’t of Nashville and Davidson County, TN (S.Ct 2009)
• Fincher v. Depository Trust and Clearing Corporation, (2d Cir. 2010)
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Recent Ethics Cases Relating to Investigations
• Mohawk Industries v. Carpenter (S.Ct. 2009)
• Costco Wholesale Corp. v. The Superior Court of LA County (S.Ct. CA 2009)
• Sandra T.E. v. South Berwyn School District 100 and Sidley Austin LLP (7th Cir. 2010)
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
Recent Ethics Cases Relating to Investigations
• In re Whirlpool Corp. (7th Cir. 2010)
• Speeny et al v. Rutgers, The State University et al (3rd Cir. 2010)
• Steingart v. Loving Care Agency, Inc. , (S.Ct. NJ 2010)
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WORKPLACE
INVESTIGATIONS
June15, 2010
PRESENTED BY:
Michael J. Soltis
Christina FeenyFrank Rudewicz
ANY QUESTIONS?
THANK YOU FOR YOUR ATTENTION!
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