Conducting an Investigation of Alleged Employee Misconduct

Transcription

1 Conducting an Investigation of Alleged Employee Misconduct American Foundry Society Environmental Health and Safety Conference August 24, 2010 Edward J. Brosius Assistant General Counsel and Assistant Secretary AMSTED Industries Incorporated

2 Background Most companies have a corporate compliance policy requiring compliance with laws, regulations, and company policies In the event of an allegation of a violation of such policy, an investigation of employee conduct will be required Allegations of employee misconduct can arise from an internal audit, a report from a supervisor or a complaint from a customer, supplier or an employee from another source One common thread applies to all such allegations: they must be taken seriously and evaluated. A poor investigation can actually increase the employer s liability and exposure. Example, not appropriately investigating an allegation of a safety issue that later results in a serious injury or fatality

3 Planning the Investigation Define the allegation and determine appropriate action Ask if an internal investigation is required. If the allegations involve violation of a company policy such as harassment, threats of violence, or workplace alcohol or drug use, or any criminal activity such as theft, an investigation should be conducted Assess in house personnel such as auditors, human resources personnel and attorneys to determine who will conduct the investigation Assess whether outside assistance such as outside counsel, auditors, investigators or the police will be needed In most cases, counsel should be involved in the investigation and should direct that the investigation is being conducted at their request in order to establish privilege for the investigation and resulting report

4 Preparing for the Investigation Although the investigation should get underway as soon as possible, preparation will assure a thorough investigation Such preparation should include: Documentation of the complaint and understanding its potential impact Reviewing the complaint to see if there are any witnesses or supervisors involved in the alleged misconduct. Ask if any supervisors need to be informed of the investigation Assemble relevant company policies Understand who the complainant is and, if an employee, review his personnel file and any prior complaints Gather relevant data, such as time cards, purchase orders, payment vouchers, and s

5 Preparing for the Investigation Continued You should review the company s policy and utilize information services to search and retrieve relevant s. Ask counsel if a litigation hold needs to be placed on any party s s or documents Ask counsel if any party s company supplied computer needs to be impounded Determine if there is a danger such that security or local law enforcement needs to be notified or if the accused needs to be immediately suspended, removed from the workplace and barred from entering the workplace in the future

6 Selection of the Investigator Depending on the nature of the complaint and the positions of the complainant and the accused, the investigator may be a member or the head of human resources, a financial officer or the chief financial officer, an in-house attorney, outside counsel, a department supervisor, a works manager, or other qualified member of management In most cases, the investigation should be conducted, if not by counsel, then at the request of counsel, so that a potential exists to have the report of the investigation deemed privileged The investigator should be: unbiased, experienced in the area of the complaint, and credible. If the complaint involves a higher member of management, it may be advisable to utilize in-house counsel or outside counsel or an outside investigator as the investigator, with appropriate assistant from management

7 Preparation by the Investigator The investigation needs to quickly appreciate the nature of the complaint and to plan his approach to the investigation Such planning includes a review of the above identified matters and then: Determining who will be interviewed, in what order and in what location Prepare an outline of the questions to ask the complainant, the accused, and any witnesses or supervisors

8 Conducting the Interview Introduction If conducted by counsel, the attorney must advise each witness that his position is either as in house counsel or outside counsel for the company, and not the individual being questioned. If the witness refuses to testify without counsel, counsel for the company needs to be consulted. Most bargaining agreements require that a union representative be present at any such interview. However, the union representative should not be allowed to coach the witness or interfere in the interview The witness should be welcomed with and appreciation for their time The witness is expected to take his time and answer the questions truthfully. If he does not understand a question, ask the interviewer to rephrase

9 Conducting the Interview Continued If the witness remembers something later on, feel free to call the investigator A brief general nature of the allegation should be given A brief general explanation of any applicable company policy should be given Explain that the matter under investigating is serious and that the company has an interest in investigating the allegation. The tone of the interview should reflect this point The witness is expected to fully cooperate as an employee of the company, if so, and to be truthful. False statements to the investigator will impact the employment of the witness, if an employee No conclusions will be made until the investigation is complete. The investigation should be considered confidential and is not to be discussed with any other employee The investigation will be kept confidential to the extent possible. However, for example, if evidence of criminal activity is uncovered, the appropriate authorities will be notified Retaliation against the complainant will not be tolerated

10 Conducting the Interview Continued Questioning The interviewer should stay focused on the issues, which come down to who, what, where, when and why type issues. The interviewer should take brief, outline type notes, which can then more readily be reduced to a report The demeanor and body language of the witness can be noted, if a particular line of questioning brings out a certain response. This should not be He appears to be lying but rather, witness started sweating or stuttering The interviewer should remain serious and in control If the circumstances allow, such as a single incident being investigated, the witness should be given the opportunity to write his own brief version of the incident in the form of a signed and dated statement

11 Conducting the Interview Continued Start with the easier questions: Ask the witness about the complainant s work history, job duties, attitude, etc. Ask the witness about the accused s work history, job duties, attitude, etc. Then ask about the incident, who was involved, what happened, when and how often, how it happened, were there any witnesses Has anything like this happened in the past, did you report it to anyone Did you keep any notes or records of the incident or prior incidents Allow and encourage the witness to talk about the allegation, either as the accused or the complainant Ask the witness to repeat or expand on an answer of you do not fully understand his position Do not make accusations or otherwise convey your opinion

12 Conducting the Interview Continue Conclusion of Interview Ask a sum up question or two: Have you told me everything about the incident or the alleged conduct? Would you like to summarize the incident or alleged conduct in your own words? Go over your outline to see if you missed anything you intended to cover Go over your notes one last time and see if you have a follow up question or two

13 Conducting the Interview Continued Remind the witness that he is not to discuss the interview with any other employee, the need to keep the topic of the investigation confidential, the requirement of non-retaliation against the complainant, and the need to call you if he remembers anything else Remember, your notes should not include conclusions, interpretations, or assumptions about the incident, any inappropriate comments about the witness or the incident or any future plans for the investigation Your notes should include the interviewers name, witness name, date of the interview; other people present, opening statement as set forth above, any company policies discussed, and your observation of the witness s demeanor. The interviewer should then sign and date the notes

14 Searches for Information Searches for Information relating to the incident should follow company policies, such as access by the employer, general workplace, desk and locker access. Two members of management should be present if access is into a locked space such as a locker. The involvement of security or local law enforcement should follow company policy

15 The Report The report of the entire investigation should in most cases be deemed conducted at the request of counsel and, accordingly, privileged The report should be: Brief but thorough, objective and neutral Summarize the incident, with names and dates Investigators names Witnesses names and dates of interviews Relevant documents and other evidence Issues and factual findings Whether the conduct violates a company policy, with copy of same Corrective actions taken The report is to be kept in the file for the entire investigation with all notes from interviews and all related documents