Internal Investigations Workshop at The Cheesecake Factory

Internal Investigations Workshop

Paul Falcone PaulFalconeHR@gmail.com www.PaulFalconeHR.com

SHRM Great 8 Books by Paul . . . 101 Sample Write-Ups for Documenting Employee Performance Problems 101 Tough Conversations to Have with Employees 96 Great Interview Questions to Ask Before You Hire

2600 Phrases for Effective Performance Reviews

New in 2016: 75 Ways for Managers to Hire, Develop, and Keep Great Employees (AMACOM Books) 2

Workshop Calendar

I. Rules of Engagement

II. Challenges, Roadblocks, and Land Mines III. Scenarios for Discussion & Analysis / Role Play

IV. Best Practices: Ideas and Suggestions

V. Investigation Strategies & Employer Responses

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I. Rules of Engagement Legal vs. Ethical

Legal standard = compliance / avoidance of wrongdoing that could trigger employment-related liability

Ethical standard = building a moral corporate culture based on integrity and transparency 4

Rules of Engagement (cont.) Legal Standards and Guidelines

Can you demonstrate that your company had a legitimate, non-discriminatory, non-retaliatory reasons for the action that it took?

Can you demonstrate business necessity (AKA a compelling business reason) and job relatedness? Standard: Did the employer have a good faith belief? . . .

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Rules of Engagement (cont.)

Disparate Treatment: intentional discrimination

Disparate (Adverse) Impact: a policy neutral on its face and even-handedly applied that nevertheless has a disproportionate adverse impact on a protected group 6

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Rules of Engagement (cont.) Protected Characteristics

Federal Law (Title VII) = 5 protections Race, color, religion, sex, and national origin

California State Law = 17 protectionsFive from Title VII above plus ancestry, physical disability, mental disability, medical condition, marital status, pregnancy, age, sexual orientation, gender identity, gender expression, genetic information, and military / veteran status 7

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Rules of Engagement (cont.)

The reasonableness standard holds that if you (i.e., the company) either knew or should have known about a worker being harassed, retaliated against, or the like, you have an affirmative obligation to intercede.

The icon of the monkey covering its eyes, ears, and mouththat is, not wanting to know whats going around itwont hold up in court and will do very little to sustain positive employee relations at work.

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Rules of Engagement (cont.)

In court, your organization will be treated as a corporate citizen, and questions will be raised as to whether that citizen acted responsibly and appropriately by interceding on behalf of its most vulnerable and disadvantaged members.

-- For more information, see the Workplace Investigation Toolkit by Paul Falcone in his Web Store at www.PaulFalconeHR.com

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II. Challenges, Roadblocks, and Land Mines What challenges are you finding in the field?

Can you identify one roadblock, that if corrected, could make things a whole lot easier?

What solutions would you propose to strengthen the muscle of front-line leadership and address pockets of employee performance problems? 10

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Challenges (cont.) What are some common ways that employees may engage in unethical behavior?

How do you effectively deal with people who constantly fly below the radar in terms of not (formally) violating a policy but stretching the limits?

What types of performance or conduct infractions can typically justify a summary dismissal? 11

III. Scenarios for Discussion & Analysis / Role Play

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IV. Best Practices: Ideas and Suggestions

Rule 1: Its all about the record

Rule 2: Practice trumps policy

Rule 3: Always get the accused workers side of the story before making a final decision 13

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Best Practices (cont.) Rule 4: When the issue drives the outcome (i.e., third rail issues that require immediate termination, regardless of an employees work history)

Rule 5: The importance of timeliness

Rule 6: Removing employees from the workplacea necessary consideration in the investigation process (i.e., paid vs. unpaid investigatory leaves) 14

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Best Practices (cont.) Rule 7: Sameness vs. Consistency

Rule 8: Performance vs. Conduct

Rule 9: Beware the dreaded preemptive strike of pretaliation 15

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Best Practices (cont.) Rule 10: Vet the written record before recommending terminationReview the written record in its totality before considering the final incident thats driving your decision to terminate (including recent corrective action and historical performance reviews) The Performance-Conduct Circle

All employees are responsible for both their performance as well as their conduct. In other words, regardless of the performance, theyre responsible for creating a friendly and inclusive work environment. 16

V. Investigation Strategies & Employer Responses Standard = Fair, Prompt, and Thorough Investigations

Fair: performed in good faith objective defined by what is reasonable under the circumstancesno decisions made until all sides have been heard

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Investigation Strategies (cont.)Prompt: no legal definition exists

General Rule: Always meet with complainant ASAP same day or within 1-2 days

Note: Employer is obligated to complete an investigation and take appropriate corrective action, even if it has no evidence that harassment is continuing or complainant has asked you not to pursue (or alleged harasser is no longer with the company)

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Investigation Strategies (cont.)Thorough

Need to interview the accused Need to interview witnesses, if anyBe careful not to omit an important witness or neglect to pursue an important contradiction in a witnesss story Ask the complainant at the outset (1) what she would like to see happen and (2) whom she thinks should be interviewed. 19

Investigation Strategies (cont.)Caveats

Be cautious about interviewing a witness by yourselfUnprofessional documents are easier to discredit Dont make any legal conclusions in your notes Dont refer to conduct as sexual harassment or hostile work environment (i.e., legal conclusions) Describe behavior, do not characterize it

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Investigation Strategies (cont.)If you fail to maintain confidentiality of information regarding an employee, that individual may later try to assert a claim of defamation or invasion of privacy Without dual consent, tape recording is illegal in some states, including California

When participants are equally believable, issue To ensure there is no confusion letters to both parties, spelling out company expectations in the future 21

Investigation Strategies (cont.)Investigator should tell the complainant (a) that the company took the complaint seriously, (b) thoroughly investigated the matter, and (c) took appropriate remedial action

Investigator should not tell the complainant the specific discipline to be imposed against the perpetratorcould violate the perpetrators right to privacy

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Investigation Strategies (cont.)EEOC Credibility Determinations (He Said She Said)

Inherent plausibility DemeanorMotive to falsify Corroboration Past record

Note:Is there any reason the other person would lie? is an important question in a he saidshe said investigation

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Investigation Strategies (cont.)Open Questions for Discussion

May an employee request an attorney to attend an investigatory meeting?

May an employee request a family member, friend, or coworker to attend? May an employee request that a union steward be present? Should you ask witnesses to put their statements in writing? 24

Investigation Strategies (cont.)Should the alleged wrongdoer be interviewed first, second, last, or in some other order?

Should you give a heads-up to the alleged wrongdoer?

If you type up your notes, should your contemporaneous handwritten notes be destroyed afterward (unless under a Legal Hold)? 25

Investigation Strategies (cont.)If the accused refuses to participate in an investigation, what are the consequences?

Special Note: Employees have a duty to cooperate with an investigation and may be disciplined for failing to do so.

Employee requests to leave the interview should be granted.

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Investigation Strategies (cont.)Case Evaluation

When making credibility determinations, consider: Corroborating evidenceConsistency in testimonyPossible bias Demeanor Whether a particular account is plausible based on direct observation or hearsay 27

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Investigation Strategies (cont.)Even if policy was not violated, consider whether there was inappropriate conduct that should be addressed (e.g., screamers, public shaming / humiliation, etc.)

Note: The equal opportunity harasser defense doesnt typically work as a legal defense strategy 28

Investigation Strategies (cont.)Prompt Remedial Action

In determining what discipline may be appropriate, consider:

The severity of the offense Prior discipline and work recordWhether the accused was cooperative during the investigation 29

Investigation Strategies (cont.)Any discipline that does not result in immediate termination should provide clear guidelines for future behavior and establish the severity of future discipline in the event of further misconduct

E.g., If you ever again engage in conduct that . . ., you [may/will] be immediately terminated for cause. 30

Investigation Strategies (cont.)Closing the loop with an employee whose boss is disciplined

The process is complete. Thank you for coming forward and helping us enforce the policy. Again, no retaliation may occur, and if you sense the possibility of retaliation in any form, HR should be notified ASAP. 31

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Investigation Strategies (cont.)We have completed an internal investigation regarding the allegations of unfair treatment that you brought forward and are addressing these issues with departmental leadership and other members of your team. During the course of our investigation, however, we obtained information from a number of sources that calls into question your conduct. It has been reported by a number of your peers as well as your supervisor that you have initiated, encouraged, and participated in conversations of a sexually explicit nature. In addition, a number of your coworkers reported that you appear to initiative back rubs and neck massages that make people uncomfortable. Your behaviors have been described as flirtatious, coy, and even enticing at times, and such conduct clearly violates our organizations standards of performance and conduct. We are open to investigating and correcting any and all legitimate claims of harassment that you feel may exist in the workplace. However, we cannot overlook the evidence that you appear to be responsible for unacceptable conduct in a number of instances as well . . .

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Investigation Strategies (cont.)Whether you capture this information in an investigatory conclusion letter or issue separate corrective action based on your findings, your actions will go a long way in shielding the company from the liability commonly seen in workers who demonstrate both a victim syndrome and entitlement mentality.

Likewise, your follow-up documentation issued to the employee should mitigate claims from workers who attempt to launch a preemptive strike against their employer by formally complaining about a bosss conduct before the supervisor has a chance to complain about the individuals job performance.

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Investigation Strategies (cont.)Social ostracism does not constitute retaliation

Proper use of the Attorney-Client Privilege

Confidential: Attorney-Client Privileged Communication in Subject line

Use first-person singular when taking someones statement: Sylvia stated, I . . . 34

Investigation Strategies (cont.)Concluding the Investigation

Some attorneys recommend having the complainant review and approve an interview sign-off to eliminate any potential dispute of the facts

An employee is not entitled to know employment actions directed toward another employee

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Investigation Strategies (cont.)Retain all notes, witness statements, and documents gathered in connection with the investigation in a designated and secure location and in an Investigation File, separate and apart from the personnel file

The retention period for investigation files is the length of the complainants employment plus six years 36

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Investigation Strategies (cont.)Note that your entire investigative file may be subject to discovery should a lawsuit be filed in connection with the issues raised in the complaint

As an investigator, you can be called on to testify about any matter related to the investigation, including the substantive facts found as well as the process of how the investigation was conducted 37

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Investigation Strategies (cont.)Reasonable standard = preponderance of the evidence (as opposed to the criminal standard of beyond a reasonable doubt)

Bottom Line: When conducting investigations, no court or arbitrator is expecting you, the employer, to have a crystal ball or to be absolutely correct. Instead, the legal standard that you and your company will be held to will be to (1) conduct a thorough investigation in a timely manner and (2) reach a reasonable conclusion about your findings. 38

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Investigation Strategies (cont.)Tips

Turn an Excel spreadsheet into a masterful investigators reporting log. Rather than taking phone messages on paper and discarding them afterwards, get into the habit of tracking voicemail messages on a spreadsheet thats set up as follows: DateTimeCaller NameCompanyPhone #Cell #Message Details

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Investigation Strategies (cont.)2. Remind supervisors that they are not to conduct their own mini-investigation into matters where they are personally accused under any circumstances (i.e., trying to find out who said what to whom as part of the original complaint), as this in itself can be seen as a form of retaliation and could be considered a separate and very serious violation of company policy

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Investigation Strategies (cont.)3. Always launch your investigation by partnering with a client who is one tier above the alleged wrongful action

For example, if a VP and director (who reports directly to the VP) are lodging complaints against one another, youve got to work with SVP of the department (i.e., the VPs supervisor) to coordinate all your investigational efforts and keep that leader informed every step of the way (including proposed resolutions to the problem).

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Good

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Investigation Strategies (cont.)4. You should also be careful not to suggest that an employee who has filed a complaint is untouchable. Complainants should be protected from unlawful retaliation; they should not be shielded from legitimate adverse employment actions if they fail to meet an employers legitimate expectations.

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Wrap and Q&A

Presenter: Paul Falcone

PaulFalconeHR@gmail.comwww.PaulFalconeHR.com https://www.linkedin.com/in/paulfalcone1 https://www.facebook.com/PaulFalconeHR/ @PaulFalconeHR

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