caplaw 2012 national training conference june 5 – 7, 2012
TRANSCRIPT
CAPLAW 2012 National Training Conference June 5 – 7, 2012 • San Diego, CA
2B. HR: The Who, What and How of Workplace
Investigations
Wednesday, June 6, 2012 8:30 – 11:45 am (with 30 min. break)
Handouts: PowerPoint Slides
John M. Polson, Esq. Partner Fisher & Phillips LLP 2050 Main Street, Suite 1000, Irvine, CA 92614 (949) 851-2424 [email protected]
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Workplace
Investigations
Presented by:
JOHN M. POLSON, ESQ.
Fisher & Phillips LLP
Phone: (949) 851-2424
Email: [email protected]
www.laborlawyers.com
Atlanta · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Ft Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New Jersey ·New Orleans · Orlando ·
Philadelphia · Phoenix · Portland ME · Portland OR · San Diego · San Francisco · Tampa · Washington D.C.
Ramifications
of Botched
Investigations
Ramifications of Botched Investigations
• The Obvious: Liability for Not
Investigating
• Invasion of Privacy
• Defamation
• Constructive Discharge
• False Imprisonment
• Retaliation
2
Why Is This Training Important?
Deponent Scene 1
Documenting
The
Investigation
Documentation Plan
• Make an outline of questions
for witnesses
• Avoid noting preliminary
conclusions, assumptions,
comments, beliefs, etc.
• Take notes
• Discard redundant drafts?
3
Where Are Your Notes?
Deposition Scene 2
Documentation Plan
• Document Retention
• Dire consequences arising from failure to
retain documents
• Need written confirmation of efforts to
preserve documents and data
Documentation Plan
• Evaluate Privilege Issues
• Decide Whether Attorney-Client Privilege
May Be an Option For Notes
• Documents Generated As
Communications To Counsel or In
Anticipation of Litigation are Privileged
4
Documentation Plan
• Evaluate Privilege Issues
• Privileged Documents May Be
Problematic Because May Need Them for
Defense
• May Want to Leave Door Open for
Privilege In The Event Investigation Goes
South
Documentation Plan
• Decide whether statements
will be taken
• Cases emphasize the positive effect
of written statements in cases where
adequacy of investigation is
questioned
Documentation Plan
• Consider the investigative
questionnaire option
• Asking written questions
• Carefully orchestrated
• No chance to back out
• Everyone has to be treated similarly
5
Documentation Plan
• Create a file
• Privileged and non-privileged
sections
• Label it confidential
• Include everything at
conclusion of investigation
Identify the
Purpose of the
Investigation
What Are You Trying to Prove?
Deposition Scene 3
6
Purpose of the Investigation
“Who Done It” Investigations
• Purpose is confirming
misconduct
• It is the “who stole my
lunch” investigation”
Purpose of the Investigation
“Who done it” Cotran defense
• Prior notice of rules
• Adequate investigation
• Chance to respond
• Substantial evidence
• Good faith decision
Purpose of the Investigation
Affirmative Defense
• Primary goal is meeting a
legal standard
• Secondary goal of “who
done it.”
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Purpose of the Investigation
Harassment Investigations
• Remedial action defense
• Prompt and thorough
investigation followed by
appropriate remedial action
is a complete defense to
most claims
Purpose of the Investigation
Negligent Retention Avoidance
• A reasonable investigation of
employee’s suitability for
continuing employment
following misconduct
• Commonly pled claim in
borderline harassment cases
Preparing To
Investigate
8
Preparing to Investigate
• Who Will Investigate?
• Any reason why it should be
someone besides you?
• Any bias arguments?
• Attorney issues – attorney
disqualification?
Preparing to Investigate
• Gather Documents
• Personnel files
• Relevant policies
• Time and attendance
• Production records
• Electronic data
Preparing to Investigate
• Electronic Document Gathering
• E-mail and computer hard drives
present valuable sources of
information
• There are few traps to avoid
9
Preparing to Investigate
• Electronic Data Gathering
• Wire tapping issues
• Invasion of privacy issues
• Importance of policy language
• Preservation of evidence
Preparing to Investigate
• Video or Photographic Surveillance
• Video surveillance of employees held
permissible when not accompanied by
audio capabilities and where the camera
located in a non-private office.
• Labor Code 435 prohibits employers
from making audio or video recordings of
employees in restrooms, locker rooms or
other rooms designed for changing clothes.
Preparing to Investigate
• Identify Potential Witnesses
• Think Creatively: Determine Who
Might Have Been There As Well
Who Was There
• Decide Who to Interview
• Publicity Issues
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Preparing to Investigate
• Determine Order of Interviews
• Source of Complaint First
• Co-Workers and Others
• Alleged Perpetrators
General
Interviewing
Strategies
General Interviewing Strategies
• Employee Rights
• Issue of whether non-union
employees have the right to
have a co-worker present
• Regardless of NLRB position
on Weingarten, no right to have
an attorney present
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General Interviewing Strategies
• Opening Statements
•Purpose of Interview
• Confidentiality
• No Retaliation or Reward
• No Fait Accompli
• Ongoing Cooperation
General Interviewing Strategies
• Keep Opinions to Yourself
• Watch Body Language
• Document Their Story
•Statements
• Initial Notes
• Other
General Interviewing Strategies
• Start with background questions
• Ask broad questions about the
work environment before moving
to specific alleged incidents
• Don’t ask leading questions until
very end; it’s better to let witness
tell the story
• Do not hold them hostage
12
Can I Leave Now?
Deposition Scene 4
Interviewing
Victims
Interviewing Victims
• Strongly consider having them
write down complaint
• EEOC issue
• Confirm times, dates, and
locations
• What did they do after the
incident?
13
Interviewing Victims
• In addition to witnesses,
identify others subject to
similar conduct
• Determine whether victim
engaged in similar conduct
Interviewing Victims
• Determine how victim
responded to the incident
•Show displeasure?
• Determine if victim spoke with
others about incident
• Evaluate compliance with
complaint procedure
Interviewing Victims
• Ask what they would like to see
happen
• Can they work with perpetrator
• Consider leave of absence
during investigation
• Don’t allow victims to quit
during the investigation
14
Interviewing
Perpetrators
Interviewing Perpetrators
• Consider what happens if
perpetrator refuses interview
• Consider how you will lock
down their story
Interviewing Perpetrators
• Start broad and work down to
specifics
• Give them a chance to fully
explain their side of the story
• Ask for witnesses
15
Interviewing Perpetrators
• Ask if accused before
• Ask for evidence of
encouragement/set-up
• Explore working relationship
with victim and witnesses
Interviewing Perpetrators
• Give them a copy of
harassment / discrimination
policy if appropriate
• Counsel again on retaliation
and confidentiality
• Strongly consider putting them
on leave
Interviewing
Co-Workers
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Interviewing Co-Workers
• Be prepared for reluctant
witnesses and decide how they
will be handled
• Determine relationship between
witness and the parties involved
Interviewing Co-Workers
• In addition to reported incident,
ask about similar incidents in
past
• Ask about hearsay in addition
to what they witnessed (gossip
can lead to good leads)
Interviewing Co-Workers
• Ask about changes in
complainant’s mood and
performance
• Ask about animus between
complainant and perpetrator
• Ask them if you missed
anything
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Interview
Closing
Remarks
Interview Closing Remarks
• Reiterate two-way
confidentiality
• Instruct them to contact you
with additional information
• Thank them for their help
Closing
Documents
18
Closing Documents
• Prepare an investigative report
• Describe chronology
• Name interviewees
• List documents reviewed
Closing Documents
• Prepare an investigative report
• Attach relevant records
• Don’t make non-factual
conclusions
• Be brief
Be Ready to Defend Conclusions
Deposition Scene 5-6
19
Determining
Remedial
Action
Determining Remedial Action
• Judge by legal standards
• Preventing future conduct
• Making good faith decisions
• Acting reasonably
Determining Remedial Action
• Evaluate credibility of evidence
• Evaluate perpetrator’s history
• Determine how similar conduct
handled in past
20
Determining Remedial Action
• Describe bases for decision in a
way that does not create
evidentiary admissions
• E.g., Don’t fire for “sexual
harassment” as opposed to
“inappropriate behavior”
Victim Follow-
Up
Victim Follow-Up
• Inform victim of result of
investigation
• Protect privacy of perpetrator
• Discuss retaliation protection
21
Victim Follow-Up
• Have them acknowledge result
and their satisfaction with same
(in writing)
• Monitor situation
Retaliation
After the
Investigation
What Does At-Will Mean? And,
He Was a Bad Fit?
Deposition Scene 7-8
22
Increase in Retaliation Claims
• For the second year in a row, retaliation was
the largest category of EEOC charges:
– Retaliation: 36.3%
– Race: 35.9%
– Disability: 25.2%
– Age: 23.3%
– National Origin: 11.3%
Legislatures Are Fueling The Fire
• Every state except one has some type of
whistleblower protection, either statutory,
common law, or both
• In the past decade, Congress enacted 12 new
significant laws protecting the rights of
workers to complain
New Federal Legislation
2000 Aviation Investment and Reform Act ~ airline workers
2002Sarbanes-Oxley Act ~ employees of publicly traded companies
2005Energy Reorganization Act Amendments ~ nuclear power workers
2007Surface Transportation Assistance Act Amendments ~ truck drivers
2007 Federal Rail Safety Act ~ rail workers
2007National Transit Systems Security Act ~ mass transit workers
2008Consumer Product Safety Improvement Act ~ retail workers
2008Department of Defense reauthorization ~ defense contractors
2009American Recovery and Reinvestment Act ~ stimulus recipient workers
2010Food Safety Modernization Act ~ food industry workers
2010 Patient Protection and Affordable Care Act ~ health care workers
2010Dodd-Frank Act ~ workers at publicly traded companies and their subsidiaries and
affiliates
Source: The Government Accountability Project.
23
Cat’s Paw and Other Tainted
Decision Making
Deposition Scene 9-11
Workplace
Investigations
Presented by:
JOHN M. POLSON, ESQ.
Fisher & Phillips LLP
Phone: (949) 851-2424
Email: [email protected]
www.laborlawyers.com
Atlanta · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Ft Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New Jersey ·New Orleans · Orlando ·
Philadelphia · Phoenix · Portland ME · Portland OR · San Diego · San Francisco · Tampa · Washington D.C.