workplace investigations: what to do, and what to avoid€¦ · n also, reduces workplace conflict...

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13th Annual Labor and Employment Law Advanced Practices Symposium

Workplace Investigations:

What To Do, And What to Avoid

Kathy PerkinsKathy Perkins LLC (Lawrence, KS)


When must you investigate?

n When complaint implicates a whistle-blower law:• Dodd Frank & Sarbanes Oxley• Securities, shareholder, bank, mail,

wire, or tax fraud• SEC violation• OSHA

n When complaint implicates an employment law



•When complaint implicates a discrimination law;n Equal Pay Act (gender) n Title VII (race, color, religion, sex, national origin)

n Age Discrimination in Employment Actn Pregnancy Discrimination Actn Americans with Disabilities Act

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n National Labor Relations Actn Concerted actionn Discussion of terms & conditions of

employment (including pay)• Fair Labor Standards Act• Laws applying to federal contractors


Retaliation

n Most common category of EEOC complaints – 44.5% of all filed

n Duty to investigate retaliation for exercise of protected rights• Even if not prohibited by law, retaliation is bad

for an employer – impedes the investigation, discourages future communication about problems in the workplace, hurts employee morale, etc.

n Duty to protect complainant & participant from retaliation


Causes/Symptoms of a Flawed Investigation

n No employee complaint/investigation process

n Investigators with inadequate training/experience, conflicts of interest, not enough time

n Poor or nonexistent documentationn Unfinishedn Wrong resultn No systemic review or feedback on

completed investigations

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Why Does This Matter?

n Reduces legal risk by:• Shows good faith effort to prevent & respond

to discrimination, harassment, safety concerns, etc. (can be affirmative defense)

• Identifying & disciplining/removing bad actors• Documenting & justifying employment

decisions

n Also, reduces workplace conflict & promotes a well-functioning workplace


Keep in Mind - The Four Csn Consistent

• How/when conducted• With policy & practice

n Conscientious• Fair & objective investigator• Who keeps an open mind

n Complete• Timely• End it! With a report & conclusions

n Come Back (follow up)


Your Investigation Program

n Starts with a well-communicated employee complaint process• Reporting process• Consider whether hot-line is in order

n All complaints should be investigatedn Written procedures, supplemented with

forms for conducting and documenting each investigation

n Trained investigatorsn Periodically evaluate how it’s functioning

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Sample Investigation Timeline

n Day 1: Receive complaintn Days 1-3: Plan investigationn Days 2-14*: Conduct investigationn Day 14: Finish investigation, reach

conclusions, finalize report, take any appropriate actions

n After investigation: Check back periodically with complainant to ensure resolution & no retaliation (Document!)

*Longer if complex or many witnesses, Shorter if simple


Initial Report

n Be receptive, welcomingn 1st time thru, let employee talkn Ask about potential witnesses,

documentation, or other evidencen Don’t promise confidentiality-can assure

limited to those who need to known Need to separate from alleged perp?n Explain retaliation prohibitedn Describe next steps n Document! (Intake Form)

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Planning the Investigation

n Identify investigator:• Human resources• In-house counsel• Outside investigator

n Identify interviewees: • Complainant• Alleged perpetrator• Other witnesses• Avoid unnecessarily expansive investigation

n What documents to review?n Collective bargaining agreement?


Plan Ahead – Confidentiality Instruction?

n Must be able to demonstrate that confidentiality is necessary to further a “legitimate and substantial business justification” that outweighs employees’ right under the NLRA to discuss the terms and conditions of their employment. (Banner Health System)

n Ensuring a fair objective investigation and preventing retaliation may be sufficient reasons, but this must be determined on a case-by-case basis. Blanket policies are not permissible.


Conducting the Investigation

n Review documents firstn Conduct (and document) interviewsn Additional documents?n Follow-up with complainant to:

• Ask any new questions raised by documents/interviews

• Provide a general update (not details, just overall status of investigation)

• Ask about any perceived retaliation

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Documentation – Why It Matters

n Witnesses forget, speculate to fill gaps

n Documentation is more crediblen Documentation shows employer:

• Took the situation seriously• Proceeded carefully and logically •Was committed to a fair process


Good Documentation

n Contemporaneousn Complete and accuraten Clear, no interpretation neededn By the interviewer, someone with

personal knowledgen Factual; no opinions, adjectives,

speculation, stray remarks


Good Documentation cont.

n Consistent across investigators & investigations

n Includes date, time, location, name and position of interviewer, interviewee, &any others present

n Consider having interviewees review, sign, and date notes from interview. • NLRB precedent requires production in

arbitration – are signed notes necessary? n Retention – notes are only useful if you

can find them!

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Bad Documentation

n Speculationn Opinions/adjectives/conclusionsn Incomplete or unclearn Missing basics – who, what, when,

where, why, date, interviewer and interviewee


Don’t Document Everythingn Do not save drafts

• Except if sent to lawyer & labeled “attorney-client privilege” and/or “attorney work product”

• Be careful about notation of document “versions”

n Separate records of conversations with lawyers unless clearly marked as “attorney-client privilege”


Interview Best Practices

n Plan topics for discussion, not specific questions. Ask open-ended questions.

n Avoid identifying complainant, disclosing the substance of the complaint.

n Make sure you get the who, what, when, where, why.

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Witness Interviews

Open Questions

Closed Questions who, what, when,

where, why?

Lock it in!


Interview Best Practices

n Follow documentation rules – just the facts

n No confidentiality promise, but limit to those that need to know

n Communicate that retaliation is prohibited

n If applicable, explain reason employees must limit communication about investigation


The Reluctant Interviewee

n Be receptive, patientn Ask why the employee is reluctant or

concernedn Reassure employee that information

will be limited to those that need to know & retaliation prohibited

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The Vague or Wandering Interviewee

n Make sure you get an answer to your question – don’t give up!

n Make sure you get the important factual details – who, what, when, where, and why

n Refocus if the employee makes unrelated complaints - assure that these complaints will be investigated too, but in a separate meeting


The Hostile Interviewee

n Stay calm, ignore any personal attacksn Start with easy to answer questionsn Demonstrate neutrality - explain you’re

just looking for the truth & out of fairness, you want to make sure you know what the interviewee knows

n Offer interviewee a breakn Remind that cooperation is mandatory

& refusal could subject employee to discipline (maybe)


ABC Engineering - Investigation

n 3-16-17 Receptionist Sue complains about inappropriate conduct from Engineer Ed• Intake Form completed• Log entry• Report started

n 3-17-17 Interview of Ed• Interview Cover Sheet + notes• Report supplemented

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Interviewing Workshop

n Lee from IT (identified by Sue) n Kelly from Accounting (identified by

Ed)

n Use Interview Cover Sheetn Spend about 15 minutes, then switch

rolesn Back to group session


Debrief & Conclusion

n Observations from interviewers & interviewees

n Next stepsn Possible outcomes


Concluding the Investigationn Factual conclusions including credibilityn Determine appropriate response

• Discipline/terminate perpetrator• False complaint? Discipline with great caution• Conflict resolution• Employee assistance program

n Document decision-making and response• Report Form

n Follow-up periodically with complainant (& document)

n Identify preventative steps: clarify policies, provide additional training, etc.

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The End Result of an Investigation Program

n Created “4 C” process to protect employer

CONSISTENT*CONSCIENTIOUS*COMPLETE*COME BACK

n Resolved conflict, allowing employees to keep their focus on work

n Earned employee confidence in ability to address problems in the workplace, discouraged “self-help”


Thank You!

Workplace Investigations:

What To Do, And What to Avoid

Kathy PerkinsKathy Perkins LLC (Lawrence, KS)

workplace investigations: what to do, and what to avoid€¦ · n also, reduces workplace conflict...

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