Conducting Effective Workplace Investigations: Legal Requirements and Practical Considerations

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1 Conducting Effective Workplace Investigations: Legal Requirements and Practical Considerations Presented: September 18, 2007 Los Angeles Office Santa Monica Blvd., Suite 700 (310) Los Angeles, CA

2 EXCLUSIVE RIGHTS TO MATERIALS THE FOLLOWING MATERIALS HAVE BEEN PREPARED BY K&L GATES TO BE USED EXCLUSIVELY BY PARTICIPANTS IN CONNECTION WITH THE K&L GATES SEMINAR ON CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS. THESE MATERIALS ARE NOT TO BE REPRODUCED, COPIED, TRANSMITTED OR USED IN ANY MANNER BY ANY OTHER PERSON OR ENTITY WITHOUT THE EXPRESS WRITTEN CONSENT OF K&L GATES. 2

3 Today s Presenters: Thomas Petrides K&L Gates Los Angeles Office (310) (Direct) (310) (Fax) Jennifer Wayne K&L Gates Los Angeles Office (310) (Direct) (310) (Fax) 3

4 Topics to be Covered Summary of legal issues and requirements regarding the duty to conduct investigations How to conduct effective workplace investigations Common scenarios and mistakes to avoid Questions and Answers 4

5 EVENTS THAT TRIGGER THE NEED FOR AN EMPLOYER INVESTIGATION Employee complaints of harassment or discrimination Employee complaints of retaliation Allegations of misconduct/wrong-doing/theft, etc. Demand letters Safety issues, accidents SOX--Whistleblowing complaints or reported acts Lawsuits or administrative claims 5

6 What Constitutes a Complaint? Easy to recognize: Written or verbal communication from employee specifically complaining of harassment or other objectionable conduct Employee verbally states he/she has been treated badly or unfairly Supervisor reports that inappropriate acts or misconduct have occurred Harder to recognize: Statement in exit interview that the employee is fed up with the crap he/she has had to put up with while working there Offhand comment from employee directly to or overheard by supervisor about inappropriate conduct that has occurred in workplace, but no specific complaint Employee mentions to supervisor that Sally and Joe have really been going at each other lately. 6

7 No Magic Words are Required There are no buzz words the complainant must use to qualify the statement as a complaint Complaints need not come through formal channels (such as through an established complaint process or directly to HR) Complaints need not be in writing Often, mere knowledge of problematic facts or events with no formal or specific complaint is sufficient to require the employer to take the initiative to investigate, or at least inquire further 7

8 DUTY TO INVESTIGATE Federal and state harassment/discrimination laws impose legal duty on employer to investigate employee-related complaints Employer has no discretion to decide not to investigate, regardless of feelings of reluctant complainants/witnesses Fact that employee is chronic complainer or a malcontent does not absolve Employer of duty to investigate Tougher question when conduct occurs off premises/off duty or at social function If conduct has implications at the workplace, investigation may be appropriate or necessary 8

9 Duty To Investigate (Cont.) Federal and state safety laws impose duty on employer to investigate accidents, safety violations Various whistleblower laws impose duty on companies to investigation allegations of wrong-doing or misconduct Provisions in written employment agreement may impose contractual duty to investigate good cause to terminate Obligations to shareholders may impose duty to investigate claims to determine or limit potential liability 9

10 Failure To Investigate Promptly And Fairly May be used as a basis to show that company failed to prevent harassment/discrimination from occurring or condoned/ratified unlawful conduct May be used by aggrieved employee as an independent cause of action if the underlying harassment/discrimination actually occurred Trujillo v. N. County Transit Dist., 63 Cal. App. 4 th 280 (1998) May create an inference of malice, which could be the basis to award punitive damages Bowles v. Osmose Utility Services, 443 F. 3d. 671 (8 th Cir. 2006) at p

11 Prompt and Effective Investigation Under Title VII of the Civil Rights Act of 1964 (EEOC), the investigation can be used by the Employer to limit or avoid liability with respect to claims for hostile work environment harassment when the complainant has suffered no adverse employment action Burlington Industries v. Ellerth, 524 U.S. 742 (1998) Faragher v. City of Boca Ration, 524 U.S. 775 (1998) Under FEHA, the Employer is still liable for harassment by a supervisor, but it can rely on a valid investigation to limit the damages that can be recovered State Dept. Health Services v. Sup. Ct. (McGinnis), 31 Cal.4 th 1026 (2003) 11

12 Investigations as Defenses to Other Claims If employment is not at-will, investigation can serve as basis to establish good faith belief by employer that employee had engaged in misconduct to justify termination, even if later proved that employer was wrong Cotran v. Rollins Hudig Hall, Inc., 17 Cal.4th 93 (1998) Proper investigation may establish that Employer had an honest, good faith belief that employee violated Company policy to defeat claim of alleged discrimination King v. United Parcel Service, _Cal.App.4 th _ (May 2007) 12

13 Civil Complaints -- Focus on the Investigation Recent trend by plaintiff s attorneys Alleged acts of harassment/discrimination may be fairly minor, but focus of the lawsuit becomes the employer s failure to fully or properly investigate Employee complained but Company did nothing If Employer did not promptly investigate, or failed to properly document, or reached questionable conclusion, these facts are exploited in litigation and make Company look bad, even if underlying claim of harassment/discrimination is weak 13

14 Best Practice Regardless of whether there is a specific law imposing a duty to investigate, it is good practice to investigate when issues or facts arise that might be problematic Properly investigating can help the company identify and prevent a problem from becoming a bigger liability Proper investigation and appropriate and prompt remedial action can cut off damages and sometimes eliminate liability altogether 14

15 Importance of Conducting a Proper and Thorough Investigation May be legally required Will help establish that Company acted reasonably and objectively May yield admissions from wrong-doer Should establish extent of conduct being complained of by employee to limit later expansion Will enable Company to take appropriate corrective action Should help limit claims and potential liability 15

16 ELEMENTS OF AN APPROPRIATE INVESTIGATION Conducted by impartial investigator Designed to ensure all appropriate witnesses are interviewed and all relevant facts are uncovered Is prompt and thorough Must be well documented Enables the company to draw reasonable conclusions Confidentiality is properly protected to extent possible Results and conclusions communicated to victim and alleged harasser Action taken that is effective to end inappropriate conduct and deter future similar conduct 16

17 Determining Who Should Investigate Key considerations: Job titles/positions of employees involved in the conduct or other wrong-doing Type of conduct involved Potential liability to Company Existence or likelihood of litigation or enforcement actions Well-trained in the skills that are required for interviewing witnesses and assessing credibility (See, e.g., EEOC 1999 Enforcement Guidance V(C) (1) (e)) 17

18 Determining Who Should Investigate (cont.) Investigator may be later called as a witness Concerns about maintaining attorney-client privilege Credibility issues with Company personnel who may be perceived as biased Investigator s likely effectiveness as an interviewer in light of the positions, personalities, and backgrounds of the people to be interviewed Investigator s prior, existing, or expected future relationship to the Company or to individuals to be interviewed 18

19 Examples of Appropriate Investigators In-house human resources professionals May not be appropriate where executive-level employees are involved May not be appropriate if friends with or in reporting relationship with those involved in the conduct In-house counsel May wish to preserve attorney-client privilege by limiting involvement in actual investigation May not be appropriate where executives or other direct reports are involved 19

20 Examples of Appropriate Investigators (Cont.) Company security department personnel Outside counsel Outside counsel becomes investigator and attorneyclient privilege will be lost or greatly limited Outside counsel will be a witness in lawsuit such that firm may be disqualified from representing Company Use of company s regular outside counsel may render investigation biased or provide the appearance of bias Outside qualified HR consultant or investigator 20

21 Planning the Investigation Identify and review applicable policies, rules and documents; become familiar with the issue(s) to be investigated Determine which witnesses should be interviewed and in what order All witnesses identified by the complainant and the alleged harasser should be interviewed; follow up as needed and as new witnesses are identified in course of the investigation Prepare an investigation checklist List of individuals to be interviewed Items/points to be addressed with each witness [Optional] Prepare/review Confidentiality Acknowledgement to be signed by witnesses (other than complainant) [Optional] Request and review personnel files of complainant, alleged wrong-doer(s), and possibly key witnesses 21

22 Conducting the Investigation Interview the complainant Interview the alleged wrong-doer Interview other witnesses Document your investigation Reach conclusion and prepare investigation report Take appropriate corrective action Communicate results to complainant and wrongdoer Follow up afterwards as necessary 22

23 What to Communicate to all Interviewees Brief nature of the investigation [Company s legal obligation to conduct investigation] Brief summary of the investigation process Confidential nature and requirement that employee acknowledge confidentiality during investigation Prohibition against retaliation Right to complain and/or participate in investigation Employee s legal duty and obligation to cooperate Requesting facts, not subjective opinions 23

24 Basic Rules for Interviewing Prepare an outline of questions to ask Seek facts; ask open-ended questions Do not ask questions that suggest a particular answer Maintain neutrality and professional tone Remain open minded; do not argue or express opinion, or suggest foregone conclusion Ask for supporting evidence (photos, s, notes, calendar entries, etc.) Follow up on answers and inquire further where facts do not gel or are confusing ask Anything else? 24

25 Basic Rules for Interviewing (Cont.) Conduct interviews in appropriate private office Certain circumstances may require off-site location Best to have two people present for Company during interviews One should be primary questioner and other primary note taker Interview one employee at a time not in a group If Union workforce, be aware of Weingarten rights Employee has right to Union Rep if questioning could lead to discipline of that employee 25

26 Interviewing the Complainant Be sensitive (but objective/neutral) to issues being raised Identify the alleged harasser(s) or wrong-doers Details of each incident of misconduct and dates/time frame Existence of witnesses or other knowledgeable persons If there was a delay in reporting, reasons for the delay and any efforts the employee used to avoid/stop the offending conduct Ask whether employee ever complained to anyone else before Inquire about the effect of the alleged harassment or misconduct on the complainant Remedy sought by the complainant Explain the process; confirm you must disclose to alleged wrong-doer the identity of the complainant 26

27 Document the Interview Take detailed notes of the complainant s statements. May want to ask the complainant to provide a written statement of the facts and details of the complaint, list of witnesses and other relevant info, etc., but do not use this as a substitute for an interactive interview Read your notes back to the Complainant and seek confirmation that they are accurate or prepare typed summary/notes and ask Complainant to review and sign them to verify that they are accurate Make sure that you record only the facts of complaint; not speculation or spin, or your opinion or subjective comments, regarding the complainant s statement 27

28 Document the Interview (Cont.) Assess credibility of the employee on separate document may want to record your thoughts, impressions, and objective observations and beliefs based on the interview (separate from the factual statement of the complaint from the employee) Date all documents and notes Place your name on all documents/notes you prepare Keep written record of when you receive from or provide documents to the employee 28

29 Interim Measures After speaking with and assessing complainant s issues, demeanor, and likely dynamics, assess and implement short-term resolution during investigation. Paid leave for employee? Paid/unpaid suspension for wrong-doer? Separate job location? Possible temp. transfer (for whom)? Work from home? Caution: Taking interim measures towards complainant may be perceived as retaliation. However, immediate action may be required to prevent further harassment from occurring. Consult legal counsel for options and it may be necessary to discuss options with complainant before determining most appropriate interim measures. 29

30 Interviewing the Alleged Wrong-Doer Briefly disclose nature of investigation and identity of complainant Do not provide specific facts or details yet Explain the investigation process Explain confidentiality issues Emphasize prohibition against retaliation and consequences of violating confidentiality requirements during the investigation processes 30

31 Interviewing the Alleged Wrong-Doer (cont.) Do not anticipate the outcome of the investigation or provide projections of likely outcome Do not engage in argument with employee Do not encourage speculation about the outcome or merits of the complaint Remind the employee that the purpose of an investigation is to uncover facts Ask the employee broad, open-ended questions first; follow with more detailed/specific questions based on responses and drill down to the core facts 31

32 Interviewing the Alleged Wrong-Doer (cont.) Ask the employee if he/she believes there is any other reason the employee may have made the complaint against him/her What is relationship between the victim and the alleged wrong-doer? Ask for any mitigating circumstances or explanations Ask for any witnesses or other knowledgeable persons 32

33 Interviewing the Alleged Wrong-Doer (cont.) As with complainant, verify the accuracy of notes taken during the interview with the alleged wrongdoer Ensure notes record facts, not interviewer s opinions or conclusions about credibility Confirm alleged wrong-doer does not have any other useful facts or information that may shed light on complaint or assist in its resolution 33

34 Interviewing Witnesses Inform the witness that the purpose of the interview is to obtain the witness s knowledge of the incident Confirm witness s obligation to cooperate Press upon the witness the importance of truthfulness and confidentiality Persons interviewed should be assured that the information they provide, including their identity, will be shared only with those who have a need to know (including the complainant and alleged wrong-doer) Reaffirm that any form of retaliation is prohibited 34

35 Interviewing Witnesses (cont.) Begin with open-ended questions Transition to the specific situation at issue Give witness an opportunity to provide any additional information Probe witness with follow-up questions, and ask about knowledge of any relationships between complainant and alleged wrong-doer or possible motivations for complaint or conduct at issue 35

36 Interviewing Witnesses (cont.) Inquire if the witness is hostile/friendly to either the complainant or the alleged wrong-doer Ask witness if he/she is aware of any others who might have relevant information or evidence Ask witness for additional information and evidence (photos, s, calendar entries, and other evidence) 36

37 Interviewing Witnesses (cont.) Prepare formal witness statements or take notes, as close to verbatim as possible, of the facts recounted to the investigation and provide witness with written statement of his/her interview to verify its accuracy and make any necessary changes Witness should sign and date the statement If this is not possible or practical, confirm accuracy of notes and obtain initials 37

38 Risk Factor Failure to interview relevant witnesses may lead to the conclusion that the investigation was unfair Taybron v. City & County of San Francisco, 341 F. 3d 957 (9 th Cir. 2003) 38

39 Expected and Unexpected Issues The recalcitrant complainant, wrong-doer, or witness Remind them of obligation to cooperate (in some instances, remind them of potential for discipline for failure to cooperate) Assure them of obligations of confidentiality/non-retaliation Confirm that company can take action based only on the information it is able to obtain during the investigation; if information is withheld, the company cannot consider it Refusal by complainant to cooperate may cause company to doubt credibility of the complaint, question motives Refusal by alleged wrong-doer to cooperate may lead to inference that he/she engaged in wrong-doing Interviewer s notes should confirm refusal to cooperate and that disclosures were made to confirm consequences of refusal to cooperate 39

40 Expected and Unexpected Issues (cont.) Complainant refuses to submit to interview without presence of counsel Confirm to employee that counsel may become a witness and cannot interfere with investigation Refusal to permit presence of counsel could affect reasonableness of investigation In the end better to allow attorney present than to refuse Reconsider who should conduct interview if counsel will be present 40

41 Self-Check on Fairness/Thoroughness of Investigation? Did you try to get both sides? Did you check documentation for confirmation/consistency? Did you interview all witnesses with relevant information? 41

42 Next Steps in Investigation Review information gathered and determine if follow-up interviews are necessary with complainant, alleged wrong-doer, and/or any witnesses Ensure documentation is complete, understandable Ensure you are clear on the facts Consult legal counsel as necessary regarding legal obligations and requirements 42

43 The Investigation Report Should be prepared by the interviewer Should summarize the facts Should include statements concerning interviewer s assessment of credibility of each person interviewed, if such an assessment is possible, and must include a basis for each such assessment Stick to observable or objective indicia If based on demeanor, describe the demeanor in detail 43

44 Meeting to Analyze Report to Come to Conclusions Meeting limited to those who need to be involved HR Director In-house counsel Appropriate executive(s) Outside counsel Interviewer should be brought in to present report, but not involved in making final employment decision Attorney-client privilege issues Keeps outcome separate from investigator 44

45 The Conclusions and Action to be Taken Conclusions drawn based on facts and information from report, with appropriate advice and guidance of counsel, as appropriate Memo should be prepared to complainant reporting the conclusions (e.g., company could/could not conclude that unlawful harassment occurred) and confirming what, if any, action will be taken Memo should confirm prohibition against retaliation and encourage immediate reporting of retaliation Memo should remind employee of open-door policy or other process if employee is dissatisfied with results and action taken Under California law, complainant must be informed of conclusions reached and action to be taken 45

46 The Conclusions and Action to be Taken (cont.) Memo should be prepared to alleged wrong-doer relating the conclusion of the investigation and any action, if any, to be taken Memo should remind employee of prohibition against harassment and consequences of violation Memo should remind employee of open-door policy or other process available if employee is dissatisfied with results or action taken If termination is appropriate action, meeting should include HR and at least one other witness, include final paycheck, and avoid argument over conclusions or merit of complaint (instead inform employee that he/she should put concerns in writing and send it to company and it will respond appropriately) 46

47 If Harassment Occurred: Employer MUST remedy any situation of discrimination/harassment Remedies may include the following actions against the harasser: Termination Discipline (suspension w/out pay, written warning, etc.) Training Counseling Transfer, demotion, loss of promotion, loss of bonus, reduction in pay, etc. 47

48 If Harassment Occurred (cont.) Remedies for the victim can include: Offering paid leave Offering company-paid counseling Offering transfer (be cautious) If employee confirms he/she wishes to leave, negotiate severance package (with general release) Paying for any costs incurred (such as for counseling, medical costs, loss of benefits, loss of any pay for absences caused by harassment, etc.) 48

49 Importance of Investigation As long as employer conducted reasonable, fair, thorough, and prompt investigation, and reached reasonable conclusions based on that investigation, employer may avoid liability to employee for harassment/discrimination or for failure to conduct appropriate investigation Exception: Strict liability where harasser was supervising agent under CA law Practical consideration: Can be used to limit damages, but may be expensive to litigate and prove this defense 49

50 Maintaining Documentation Keep all investigative materials, including interview notes, witness statements, correspondence, and documents gathered in the course of the investigation, in a separate file not in personnel file All investigation documents should be marked as such Keep all investigation materials confidential Limit access to the investigation materials 50

51 Discovery of the Investigation File The investigation record, which includes notes of the interviews, will be discoverable Interviews by counsel (in-house or outside) or by HR professionals or other investigators with various witnesses are discoverable Witnesses having a conversation with the in-house counsel where the in-house counsel is conducting the investigation is not privileged and is discoverable 51

52 Discovery of the Investigation File (cont.) Internal s, sent between various managers/supervisors and HR professionals, even if in-house counsel is included in the list, may not be privileged use of s should be limited Attorney interview notes may not be privileged, even if they contain deductions, analysis, determination of credibility if they are inextricably intertwined with the investigation record or disclosed to those without a clear need to know 52

53 Common Mistakes and How to Avoid Them Taking the side of one of the parties involved in the investigation Common mistake (and easy to understand why this may occur), but it is important for investigator to remain neutral and conduct an unbiased, objective investigation Applies equally whether empathizing with complaining employee or defending conduct of alleged wrong-doer 53

54 Common Mistakes and How to Avoid Them (Cont.) Promising complete confidentiality to parties or witnesses involved in the investigation Must be sure to explain that confidentiality is qualified/limited While every effort will be made to conduct a discreet investigation and disclose information only on a need to know basis, nature of investigation will require facts disclosed to come out to various people as necessary 54

55 Common Mistakes and How to Avoid Them (Cont.) Failing to properly document the investigation Many times, minor complaints or issues are not fully or properly documented While it may not be necessary to document to the same full extent as a more serious complaint, it is still very important to at least properly document the investigation to avoid potential claims later on Also, be sure that all relevant documents are properly dated and can later be identified with respect to who gave the witness statement and who prepared it 55

56 Common Mistakes and How to Avoid Them (Cont.) Do not become a lazy investigator Do not simply ask the witnesses, complainant, or alleged wrong-doer to provide you with a written account of what happened Important to have interactive interviews to assess credibility and immediately follow-up on issues raised Prevents employees from improperly inserting their own subjective opinions and potentially biased beliefs into the process Otherwise, may not be viewed as a fair, thorough, and objective investigation 56

57 Common Mistakes and How to Avoid Them (Cont.) Failing to come to a conclusion In the he said she said type of case, easy to simply state that no conclusion can be reached However, important to reach a conclusion based on the best information available, credibility of the witnesses, a determination of who is more likely to be telling the truth, etc. OK to determine inappropriate conduct without concluding unlawful sexual harassment occurred But, California law on harassment requires some conclusion to be reached, and failure to do so could lead to later liability 57

58 Common Mistakes and How to Avoid Them (Cont.) Failing to talk to accused prior to reaching conclusion Not uncommon for Employer to reach conclusion based on strong facts against employee that employee did it and purpose of meeting is to impose discipline rather than investigating or questioning employee No matter how implausible an explanation might be, should still meet with the employee to get his/her side of the story prior to imposing discipline Employee may admit guilt or give false statements during interview that can then be used as further basis to terminate or discipline employee 58

59 Questions 59

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