1 Solving the Mystery Behind Conducting a Flawless Workplace Investigation - An HR Attorney s Perspective Aaron L. Zandy, SPHR, SHRM-SCP, Esquire FordHarrison (407)
2 Search for the Flawless Investigation What constitutes a complaint? Do I have a duty to investigate? Who should conduct the investigation? How should the investigation be done? Should an investigative report be prepared? Are there common mistakes to avoid? How much coffee have you had? Will you answer all of my questions & not bill me?
3 What Constitutes a Complaint?
4 What Constitutes a Complaint? Written or verbal communication from employee specifically complaining of discrimination, harassment or other objectionable conduct Employee verbally states he/she has generally been treated badly or unfairly Supervisor/ manager reports that inappropriate acts or misconduct have occurred Complaints submitted through published policy EEOC / FCHR Charge of Discrimination / Lawsuit
5 What Constitutes a Complaint? Subtle statements about workplace or supervisor Offhand comment from employee directly to or overheard by supervisor about inappropriate conduct that has occurred in workplace Comments made outside of workplace between friends ( just between us, off the record )
6 Duty to Investigate
7 Duty to Investigate Federal & state harassment/discrimination/safety laws impose legal duty on employer to investigate employeerelated complaints (defenses & mitigation) Can include off-duty conduct For Cause terminations (in employment contracts or CBAs) require fair & through investigations Obligations to shareholders may impose duty to investigate claims to determine or limit potential liability Right Thing To Do - provide safe work environment ( happy employees are productive employees, productive employees are profitable employees! )
8 Selecting the Investigator
9 Selecting the Investigator Ability to understand business purpose of investigation & potential issues it may raise Knowledge of policies & practices Knowledge of applicable legal issues Ability to take thorough, accurate notes which can be used as evidence Communication fit with personalities & backgrounds of potential witnesses
10 Selecting the Investigator Interviewing skills, including the ability to identify follow-up questions when new facts or issues arise during interviews Ability to determine when & when not to maintain confidentiality Ability to determine credibility of witness
11 Selecting the Investigator Manager or supervisor HR professional ( perfect witness ) Private investigator or outside consultant In-house counsel Outside counsel ( CYA )
12 Conducting the Investigation
13 Conducting the Investigation - Strategy Outline scope & breadth of investigation Prepare a timeline, include each step that will be taken & expected completion date Recognize that chronology & order of interviews can either contaminate or enhance success of investigation
14 Conducting the Investigation - Strategy Prepare an outline of critical issues: Ensures all issues regarding each witness will be addressed Ensures a thorough & consistent line of questioning Allows investigator to compare similarly situated witnesses from a standardized approach
15 Conducting the Investigation - Documents Rules, policies, & procedures Personnel files (named individuals & comparators ) Memoranda or notes about incident Complaints (internal or external) Videotape (security) , Internet, Blogs, Facebook, etc. Other potential information sources
16 Conducting the Investigation - Interviews Disclose nature & purpose of investigation at beginning Be candid when interviewing person who is focus of investigation Explain to witness that company takes complaints seriously Make appropriate disclosures (e.g., who you are, who you represent, why you are there, etc.) Do not promise confidentiality!
17 Conducting the Investigation - Interviews Stress voluntary nature of participation Make clear employee may terminate discussion at any time No retaliation Advise that no judgments have been made about any aspect of investigation, including validity of complaint Just the Facts!
18 Conducting the Investigation - Interviews Begin with open-ended questions ( Funnel Approach ) Transition to specific situation at issue Give witness opportunity to provide additional information Probe witness with follow-up questions, & ask about knowledge of any relationships between complainant & alleged wrong-doer or possible motivations for complaint or conduct at issue
19 Conducting the Investigation - Interviews Inquire if witness is hostile/friendly to either complainant or alleged wrong-doer Ask witness if he/she is aware of any others who might have relevant information or evidence (witnesses) Ask witnesses for additional information & evidence (photos, s, calendar entries, & other evidence)
20 Conducting the Investigation - Interviews Be an active listener & critical thinker Does this make sense? Do I understand exactly what happened? Will the person reading my report understand exactly what happened? Use your time line to identify discrepancies between witness own story & that of others - challenge facts
21 Conducting the Investigation - Interviews Clarify basis for witness knowledge of a fact How do they know? Saw it? Heard it? Touched it? Smelled it? Tasted it? Was involved in it? Distinguish between no & I cannot recall. Document carefully for later review - generally don t tape record interviews (witnesses are less forthcoming)
22 Conducting the Investigation - Interviews Prepare formal witness statements or take notes, as close to verbatim as possible, of facts recounted to investigation & provide witness with written statement of his/her interview to verify accuracy & make any necessary changes Witness should sign & date statement If this is not possible or practical, confirm accuracy of notes & obtain initials
23 Conducting the Investigation - Interviews Specific to Harassment Complaints Was conduct welcomed? Does alleged action have purpose or effect of creating a hostile, offensive or intimidating environment? Is it sufficiently severe or pervasive to alter conditions of alleged victim s employment?
24 Conducting the Investigation - Interviews Specific to Harassment Complaints How often did alleged action occur? How severe was alleged action? Was alleged action physically threatening or humiliating? Describe in detail (don t accept dirty talk or inappropriate language or conduct ) Does alleged action unreasonably interfere with victim s work performance? Reasonable person standard (a jury of your employee s peers)
25 Conducting the Investigation - Interviews Conclude interview Repeat significant points & ask interviewee to confirm information is complete & accurate Give witnesses opportunity to disclose anything else he/she thinks might be important Counsel witness to keep matters discussed confidential Invite witness to contact you if he/she recalls or discovers any additional helpful information after interview concludes
26 Conducting the Investigation Interviews (Credibility) Demeanor - Body language How did witness react to allegations? Did witness appear credible overall? Logic/consistency How much detail did witness offer? Did events differ from others interviewed? Did witness version make sense? Is there corroborating evidence?
27 Conducting the Investigation - Interviews (Recording/ Transcribing Interviews) Witness may be uncomfortable & less forthcoming Informed consent of witness required? Once recorder is on, state date, time & place of interview, name of participants and have witness confirm on tape his/her knowledge of & consent of the recording Repeat & re-verify consent at conclusion of interview
28 Conducting the Investigation Interview Problems Fire them just kidding! Remind them of obligation to cooperate Assure them of obligations of confidentiality/nonretaliation Confirm that company can take action based only on information it is able to obtain during investigation Interviewer s notes should confirm refusal to cooperate & that disclosures were made to confirm consequences of refusal to cooperate ( delicate issue )
29 Preparing the Investigative Report
30 Preparing the Investigative Report Write as though every word will be second-guessed (opposing counsel, judge, & jury) Prepare summary of facts Include facts, not speculation or hearsay Where there are discrepancies, give all versions Reach a conclusion Who do you believe & why Take appropriate action to address conclusions Factual findings (possibly recommendations)
31 Preparing the Investigative Report Include background of complaint Summarize witnesses statements: evaluate their credibility (based on facts) Make factual findings (vs. legal conclusions) Mark confidential - maintain privileges Recommend appropriate action, if charged with doing so Direct to Counsel/Senior Management Prepare final report in anticipation of discovery
32 Preparing the Investigative Report Were policies, guidelines, practices violated? If so, was violation serious or minor? What has been done in the past with regard to similar violations (consistency)? Are there mitigating or aggravating circumstances? Creative alternatives?
33 Post-Investigation Measures Inform participants of resolution Take steps to ensure that no retaliation is taken Encourage complaining employee to bring all issues forward in future Continue monitoring situation Train managers/ employees as needed Give significant raises to HR professionals!
34 Common Investigation Mistakes to Avoid
35 Common Mistakes to Avoid While Conducting a Workplace Investigation Taking sides Investigator must remain neutral & conduct unbiased, objective investigation Applies equally whether empathizing with complaining employee or defending conduct of alleged wrong-doer
36 Common Mistakes to Avoid While Conducting a Workplace Investigation Promising confidentiality Breach of contract Must be sure to explain confidentiality is qualified/limited Treat as sensitive information - share only with legitimate need-to-know
37 Common Mistakes to Avoid While Conducting a Workplace Investigation Failing to Document Minor complaints often not documented Relevant documents must be properly dated & signed Sanitize notes & report before finalizing Be the proud author!
38 Common Mistakes to Avoid While Conducting a Workplace Investigation Failure to Actually Investigate Do not simply ask witnesses to provide you with a written account of what happened Important to have interactive interviews to assess credibility & immediately follow-up on issues raised Prevents employees from improperly inserting their own subjective opinions & potentially biased beliefs into process
39 Common Mistakes to Avoid While Conducting a Workplace Investigation Failure to Make Conclusions He said - she said type case, easy to simply state that no conclusion can be reached Important to reach a conclusion based on best information available, credibility of witnesses, a determination of who is more likely to be telling the truth, etc. Okay to determine inappropriate conduct without concluding unlawful harassment occurred
40 Search for the Flawless Investigation What constitutes a complaint? Do I have a duty to investigate? Who should conduct the investigation? How should the investigation be done? Should an investigative report be prepared? Are there common mistakes to avoid? How much coffee have you had? Will you answer all of my questions & not bill me?
41 Solving the Mystery Behind Conducting a Flawless Workplace Investigation - An HR Attorney s Perspective Aaron L. Zandy, SPHR, SHRM-SCP, Esquire FordHarrison (407)