investigative strategies: from bootcamp to minefields · investigative strategies: from bootcamp to...

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Investigative Strategies:From Bootcamp to Minefields

Steven Baruch, Service Area Compliance Director

Lisa Barnett Sween, Principal

Mark Ross, Principal

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• Basic overview of investigations, investigative techniques and strategies for Compliance Professionals

• Conducting an effective internal investigation

• National Labor Relations Act (NLRA) considerations when complying with US Sentencing Guidelines for criminal conduct. Considerations for both union & non union employers during investigations

Goals

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• Qui tam is an abbreviation from the Latin "qui tam pro domino rege quam pro sic ipso in hoc parte sequitur"meaning "he who as well for the king as for himself sues in this matter"

• Qui tam is the technical legal term for the mechanism in the federal False Claims Act that allows persons and entities with evidence of fraud against federal programs or contracts to sue the wrongdoer on behalf of the Government.

• A qui tam action is one brought under the False Claims Act by a private plaintiff (relator) on behalf of the Federal Government (rather than by the Government itself). The Government has the right to intervene and join the action, or the Government may decline intervention, in which case the private plaintiff may proceed on his/her own

Qui Tam Relator

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Qui Tam Relator (continued)The qui tam provisions in the False Claims Act include strong incentives both to report fraud against the Government and to participate in the resulting litigation

Under the Act, successful relators;• are entitled to at least 15% and up to 30% of the

funds they help recover for the Government• protected from retaliation for activity relating to

the action

(Generally, a relator must prove by the preponderance of the evidence (more likely than not) that the defendant knowingly submitted a false claim for payment or approval to the Government)

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Situational question

• What do you anticipate would happen if an employee brought a complaint to a senior executive in your organization?

Initial Compliance Foundation• What is the culture of your organization?

– Are these matters taken seriously regardless of who brings them forth?

• Will this be recognized as a compliance issue?– Have you provided sufficient compliance training & education to your

employees?

• Will they contact you, as a compliance professional?– Do employees know you exist? Do you round or do any proactive

work?

• What is your relationship with the staff & employees?– Do they have confidence or trust in your role?

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Basic information gathering• If possible & reasonable, make contact with the reporting individual & introduce yourself if they don’t know who you are

• Assure that you appreciate their concerns and recognize that it may have been difficult for them to bring the matter forward to leadership

• Assure them that as a compliance professional, you are concerned about their issue and want to resolve the matter appropriately & professionally

Basic information gathering– Who is this person?

– What do they do in the organization?

– Ask them to summarize their concerns, even if you have previously received it from a third party

– Is it reasonable to believe the information they have is within the scope of their work? How did they come to this knowledge or awareness?

– Do they sound “coached”?” Even if they haven’t mentioned anything about “whistleblowing” or “qui tam” do you have reason to believe they would pursue such a case?

– Do they have documents? Copies? Data? Are they willing to provide copies?

– Inquire what they believe the solution is, or what they would like to accomplish by bringing the issue forward

– Gather as much data, documents, and information you can before interviewing any witnesses or parties that may be involved

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Initial goal

• You should have a basic overview of their concerns, with enough information to understand whether there is a need for a larger, more formal investigation

• And remember…..

Stay neutral & unbiased, don’t formulate an opinion – YET

Attorney‐client privilege

An evidentiary rule that protects communications between a client and his or her attorney and keeps those communications confidential. It protects both attorneys and their clients from being compelled to disclose confidential communications between them made for the purpose of furnishing or obtaining legal advice or assistance. The privilege is designed to foster frank, open, and uninhibited discourse between attorney and client so that the client's legal needs are competently addressed by a fully prepared attorney who is cognizant of all the relevant information the client can provide

1. The asserted holder of the privilege is (or sought to become) a client; and

2. The person to whom the communication was made:

a. is a member of the bar of a court, or his/her subordinate, AND

b. in connection with this communication, is acting as an attorney; and

3. The communication was for the purpose of securing legal advice

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Decision point

• Based on the information you have, do you wish to contact counsel?

– Present your information or summary to counsel and discuss if an investigation under A/C privilege is warranted?

Self assessment• What areas in this investigation might you be lacking in knowledge

or experience?• Will it be wise for you to investigate alone?• If not, who else can help? What expertise do you need to succeed?• What relationships & expertise do you have in your organization

that will support you?

Who’s in your village?

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Investigations

Just the facts

Eight Steps to Conducting the Investigation

Prepare an investigative work plan

Review the applicable documents

DOCUMENT and retain investigative records

Interview the complainant(s)

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Eight Steps to Conducting the Investigation

Interview the alleged wrongdoer

Evaluate Facts

Finalize the investigation

Interview the witnesses

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Investigation Plan: the Basics

• Who

• What

• Where

• When

• Why

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Investigation Plan: Timing

• Investigation Schedule

– Goal should be to conduct the investigation “promptly” ‐ as soon as possible and to resolve it within a reasonable period of time consistent with the scope of the investigation and the significance of the issues

– The longer an investigation is open, the more difficult it is to resolve

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Objective• Remain neutral at all times• As a compliance professional/ investigator your role is to gather the facts

• Don’t have opinions before you start to gather facts

• Act as if you have never encountered parties to the issue before

• Treat allegation seriously

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Hotline Complaint Scenario

• Sue, a medical assistant in a hospital is a member of SEIU. She recently received a poor performance evaluation from Dr. Johnson, the physician she supports

• It is reported to the CO via the hotline that Sue has accessed Dr. Johnson’s electronic medical records

• It is reported that Sue also used the information gained to research the physician’s home on a website map page out of curiosity regarding what type of home the Dr. Johnson owns.

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Plan

• Make sure you understand the issue

• Map out issue and what issues need to be addressed

• Identify who will be involved – may be subject to change

• Evaluate additional resources that may be needed

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Identify Relevant Documents

• Applicable policies, practices CBA Background information• History of improper conduct• Similar complaints in the past• Motives/biases (e.g. poor evaluation)

• Factual information such as letters, emails, voicemail messages, calendars, Internet history, text messages, computer hard drives, social media

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Social Media• People post the strangest things • Look for links between various entities being looked at

• Consider friends/relatives/businesses and other types of relationships

• Information posted in public forum can be useful in an investigation

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Public Source Information

• Many business records are posted online

• Business filings are generally publicly accessible documents

• Lots of information is out there

• Information may include personal or business relationships

Company Documents

• Know and learn location for records relating to company where you work

• Company policies, in addition to rules/regulations, are your roadmap for investigation

• Company documents may be included in business filings

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Scrutinize the Documents

• Determine if documents are “missing”

• Determine who prepared the documents and why

• Verify that the information in the documents is accurate

• Take adequate measures to ensure MSC preserves evidence (e.g., e‐mails, notes, telephone records)

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Other Information Systems

• Security video

• Access devices (e.g., card readers, key pads)

• Timekeeping system

• Payroll system

• E‐mail

• Complaint hot‐lines

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Learn and Educate Yourself

• Always understand scope of investigation, your role, and your responsibilities

• Understand roles of others involved in the investigation

• Understand exactly what must be proved/disproved during course of investigation

Interviews (preparation)Who to interview?• Reporter/complainant or person making allegation• Others who may have facts of the situation• Consider others who are present or frequent the location of the

incident• Managers and others potentially involved• The “victim”, if any• The implicated individual, if any• What is your company policy on employees participating in

investigations?

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Interviews (preparation)

• Do not select only “friendly” witnesses

• Names of witnesses will likely come up during the interviews

• Re‐interview witnesses if necessary

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Interviews (preparation)• Determine how you will complete interviews

• Need for any other interview partners, experts, witnesses?– HR partners, bargaining unit reps

• Scheduling & coverage for staff? Coordination with managers?• Any concerns about collaborating stories? Need to isolate witnesses prior to

meeting? Confidentiality concerns?• Location? (Conference room, office, public area)

• Have as much data & facts as possible prior to interviews• Be as much of an expert of the topic as possible

• You want to be able to ask good questions. You want to seem understanding and knowledgeable. You also want to know if their explanation is plausible or determine credibility

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• Prepare rough outline/checklist for the interview

• Each situation demands different questions, since the elements of each problem are rarely the same

• Each witness will need to answer questions relating to what they saw, when they saw it, who was there, why something happened (if known), what happened next, and so on

• The investigator must be capable of thinking of new questions on the spot to follow up on information given by the witness(es)

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Interviews (preparation)• Let the person tell you the complete story

• Do not interrupt unless you absolutely need to clarify

• Ask open ended questions• Listen patiently without pre‐conceived opinions• May have to listen to a lot more than you want to hear• Never make a judging statement

People will speak more openly if they feel safe, and provided a trusting environment and a compassionate listener. Be hostile & make judgmental statements and your witness becomes hostile and defensive

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• Pay attention to gestures and other non‐verbal clues

• Be creative. For example, consider walking the premises where the alleged act occurred

• Promise nothing, but clarify what the complainant expects from the investigative process

• Repeat the story to confirm your understanding


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• Explain generally what is being investigated

• Advise that no judgments have been made about the validity of the complaint

• Explain the allegations (only as needed)

• Do not promise confidentiality

Interviewing The Witnesses

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Interviewing The Witnesses• Determine whether to provide witness with factual background

• Don’t share what other witnesses have said unless necessary

• Do not discuss your opinions and conclusions with witnesses

• NEVER conduct witness interviews in groups

• Must diplomatically “pin” witness down on facts

• Distinguish between first‐ and third‐hand knowledge

• What do they know? Source?

• Notes? Recordings? Evidence?

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Interviewing The Witnesses

• Avoid conclusions, focus on facts; if witness concludes,ask why?

• Focus on behaviors and not someone else’s conclusion

• Avoid “yes” and “no” questions – get witness to talk!

• Ask open‐ended questions

• Reiterate that retaliation against the complainant orothers is prohibited

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Your Interviews Regarding Sue

• What are the key issues to address in the interview about Sue’s alleged misconduct?

• What questions will you want to ask?

Interviewing Sue• Advise Sue that allegations have been made

• Advise that no decision has been made that the claims are true and that this interview is to determine the facts

• Remind accused that the Company prohibits any retaliation against complainant

• If the Employee expresses anger, let time pass before encouraging a response to questions. Anger is a natural response

• Give full opportunity for a response to each accusation

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• Review specific allegations and ask for and document employee’s response – ask open ended questions. You do not need to disclose the source of all of your information, but you must describe the allegations sufficiently to enable a response

• Get exact descriptions of words used, actions taken, etc.

• If employee denies the allegations, ask why he/she thinks complaining party may have made them

• Prepare to ask the same question in several different ways

Interviewing Sue

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• Ask the tough questions, but save embarrassing and unfriendly questions for the end to avoid witness becoming defensive and less open

• Be patient, allow witnesses to respond

• Power of silence

• Use of documents/recordings/emails at end to confront with specific evidence

Interviewing Sue

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Interviewing Sue

• If you suspect that the witness is lying, use fact‐based questions to get back on track

• Ask for additional witness’ names

• Remind Accused that they should not attempt to conduct their own investigation. If the Accused has additional witness or facts to be considered, they should inform the investigator

• Reiterate that retaliation against the complainant or others is prohibited

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Interview DON’Ts:• Do not suggest answers or interrupt

• Do not display your authority

• Do not mistreat interviewee

• Do not make accusations or threats

• Do not allow distractions

• Do not assume information is true simply because it is corroborated by another person

• Do not make promises, obligations or private deals

• Do not tape record 42

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What Not to Do When Interviewing The Complainant • Prejudge the situation – assume “guilt” before it is established

• Excuse away complainant’s behavior without considering motivations

• Talk more than you listen

• Ignore “bad” facts or testimony

• Act like a friend rather than a neutral investigator

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• What do you do with the evasive witness?

• What do you do with the hysterical/emotional witness?

– Crying

– Argument

Common Interviewing Challenges

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What About Uncooperative Witnesses?

• Attempt to establish rapport and explain the investigative process in some detail

• Communicate Company’s policy regarding participation in internal investigations

• Document the witness’ refusal to cooperate

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• What do you do with the witness who keeps bringing up old or irrelevant matters and tries to connect the dots to the current allegations?

Common Interviewing Challenges

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15 Common Signs of Deception1. Inability to maintain eye contact 2. Excessive Thirst 3. Heavy perspiration 4. Rapid/heavy breathing 5. Flushed face 6. Neck arteries pulsate 7. Attempts to gain information from the Interviewer 8. Restlessness 9. Unusual lapses of memory 10. Contradictory or continued stories11. Tendency to blame others12. Easily upset by repeated questioning 13. Tells a contrived story 14. Admits to lesser offenses15. Tries harder to be convincing 47

Concluding the Interview

• Review facts/notes

• Consider other notes or e‐mails

• Acknowledge the witness for their participation

• Leave the door open for follow‐up communications

– Is there anything else you would like to add?

– Note the length of the interview, including when interview began and ended

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Continuing the Investigation

• Re‐interviewing the Complainant, Witness and/or accused may be necessary to ensure accurate facts and information

• Keep confidential the source of contradictory information

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Concluding the Investigation

• Decide if there are sufficient facts to believe inappropriate action occurred

• Depending upon the severity of the conduct, disciplinary action should be imposed

• In deciding the extent of discipline, review legal ramifications, past Company practices, reporting obligations

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Note Taking Essentials

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– Why do we document interviews?

– Best practices/techniques for documentation

Use of the Interviews in Litigation – Effective Documentation

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Effective Documentation

• Document each interview and, when appropriate, have the interviewee sign a statement

• Separate notes for each interview

• Separately record observations and evaluation of credibility Caution: may be discoverable

• Write key statements literally in quotes53


• Preparer’s names, date/time of interview, all present

• Close to verbatim / use quotes

• Identify those present, date, time, location

• Record Qs & As

• Review and affirmation of information

• Based on fact – not opinion or speculation

• Reference specific issues, policies

• Include dates, times, chronology of events

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• What will this document look like blown up in court in front of a jury?

– Investigation notes, disciplinary documents, statements, etc. may all become exhibits at trial

• Do not mix your impressions with those of the witnesses

• All documentation of conversations with Employees should include the date of conversation, your name and title, and the Employee’s name and title

• Do not abbreviate, editorialize, or characterize

• Review, edit and fill in any gaps in notes immediately after interviews

• Note any facts about the complainant's demeanor reflecting on credibility

• Beware of what you write about the accused employee

• Mark notes “Confidential” and keep them in confidential investigation file

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Employee Admissions• Get it in the Employee’s own words and writing

– Clarify

• Confirm the Employee’s admission back to the Employee

• Want to avoid the Employee’s potential attempt to change the meaning of the admission or their words

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Investigation Notes

• What is good about the notes?

• What is bad about the notes?

• How might the notes be more helpful when looked at a couple years later for litigation purposes?

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Document

• Report results of investigation

• Reporting mechanism varies with type of investigation

• Compliance matters generally reported and documented into a database system

• Reporting of investigation may vary if subject to direction by attorneys

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Final Report

• Summary of the allegations with responses • Remedy requested• Summary of policies and procedures• Summary of interviews (dates, times, etc.)• Description of relevant documents• Identification of any policies that are applicable• Chronology of events• If you make any credibility determinations, describe the facts on which they

are based.

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Final Report

• May be included as part of investigation documentation

• Could include possible recommendations of disclosure to government agencies (local law enforcement, CMS, OIG, OCR, etc.)

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Post‐Investigation Analysis

• Gaps or weaknesses in Company policy/practice?

• Need for additional training of supervisors and employees?

• Limitations in investigative procedures?

• Can we learn anything from this investigation that will improve the workplace, prevent future misconduct or result in better investigations?

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How Investigations Impact Litigation

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How You Can Help• In any matter that could potentially lead to litigation, you

only want documents that create a record of your:– Reasonableness– Objectivity– Fairness and lack of prejudice– Candor– Diligence– Subject‐matter knowledge– Compliance, and– Truthfulness

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Answering The Tough Questions

• “Were you telling the truth then, or are you telling the truth now?”

• “Why did you leave that out of your report?”

• “Did you not think it was important?”

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Communications• What does it sound like when you say it out loud?• How will this email sound when it is read to the jury?

– Never put something in an email you aren’t comfortable with explaining 1‐2 years later

– “Game plan”– “We got ‘em”

• Expect your notes and statements to be taken out of context – can you explain them 2 years later?

• Remember: Innocent until proven guilty

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• Failure to follow policies exactly will be overblown at trial

• Plaintiff’s Attorney will focus a Jury on holding the Company to its own documentation and policies

Dotted All the “I’s,” But Failed To Cross One “T”

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Key Question for Jurors

• Jurors ask themselves many questions while deliberating, but the key question is:

WAS THE PLAINTIFF TREATED FAIRLY?

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What’s Unfair?• Discharge without just cause

• Discharge without fair notice

• Discharge without “due process”

– Follow Company policies

– Give Employee last chance to tell his or her side of story

– Verify information relied upon in making decisions

• Discharge of long‐term Employee for petty offense

• Differential treatment

• Ignoring Company policies

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What’s Fair?

• Clear rules and performance standards communicated to Employees (preferably written)

• Chance to turn things around (performance improvement plans)

• Progressive discipline (CBA)

• Equal treatment under similar circumstances—Consistency!

• R‐E‐S‐P‐E‐C‐T

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Mark Ross, Principle

Jackson Lewis P.C.

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“HI – WE’RE FROM THE GOVERNMENT – AND WE’RE HERE

TO HELP YOU”!! REALLY!!

Reconciling the Use of Effective Ethics/Compliance Programs (ECEP’s) Under

Federal Sentencing Guidelines with Employee Rights and Employer Obligations Under the National Labor Relations Act

We Live In the Age of Incentivized Corporate Compliance

• Just Like Individuals, Organizations Can Be Found Guilty of Criminal Conduct > Possible Fines/Probation/Restitution/Notice to Victims/Forfeiture/Debarment

• Witnessing a Proliferation of Federal and State Laws Regulating Business Behavior/Ethics with Potential Criminal and Civil Liability

• Seeing a Mounting Reliance on Corporate Self‐Policing/Voluntary Disclosure of Non‐Compliance as a Vehicle for Reducing and, Perhaps, Even Avoiding Liability

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We Live In The Age Of Incentivized Corporate Compliance (Continued)

• Federal Sentencing Guidelines (FSG) Promulgated by United States Sentencing Commission – Encourage (But Do Not Require) the Use of Effective Compliance/Ethics Programs (ECEP’s)

• The Dual Purposes of Such Permissive ECEP’s Are to Deter and to Justly Punish Corporate Wrongdoing

The Upsides to Having and Using an ECEP

• Through the Voluntary Use of an ECEP that Satisfies the FSG’s, a Company May:

– Avoid Prosecution

– Position Itself to Seek Non‐Prosecution/Prosecution Deferral

– Operate to Reduce a Fine/Penalty in a Negotiated Disposition

– Create a “Good Corporate Citizen” Culture – May Lessen the Incidence of Corporate Wrongdoing and Minimize the Risks of Civil Liability in Private “Coattail” Litigation Through a Company’s Proven Exercise of Due Diligence/Good Faith – Qui Tam Actions/Shareholder Derivative Suits/Workplace Harassment

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The Seven Elements of an ECEP That Satisfies the FSG’s

1. Establishment of Standards/Procedures that Are Reasonably Capable of Reducing the Prospect of Criminal Conduct

2. High Level Buy‐In/Oversight Re: the ECEP’s Implementation/Effectiveness

3. Due Diligence in Not Delegating Compliance Authority to a Likely Wrongdoer

The Seven Elements of an ECEP That Satisfies the FSG’s (Continued)

4. Effective Communication to/training of Affected Persons Re: the ECEP’s Standards/Procedures

5. Reasonable Steps to Ensure Compliance, e.g., monitoring/auditing, effectiveness evaluation, publication of system with protections against retaliation

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The Seven Elements of an ECEP That Satisfies the FSG’s (Continued)

6. Consistent Enforcement of the ECEP – with Appropriate “Carrots and Sticks”

7. Reasonable Steps to Respond to Criminal Conduct and Changes to ECEP to Prevent Future Criminal Conduct

Where the Rubber Should Meet the Road – What You Should Be Able to Do With a Well Crafted ECEP

• Position the Company to More Easily Detect Problematic Behaviors

• Effectively Investigate Questionable Conduct

• Take Prompt and Appropriate Action that

– Remedies Problem Conduct at the Earliest Possible Moment

– Proportionately and Consistently Punishes Wrong doing; and

– Minimizes the Risk of Criminal and Civil Liability

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A Properly Run ECEP Can Be a Very Helpful and Handy Tool to Have Around, BUT – AND THERE

IS A BUT . . .

Juxtaposed in Possible Opposition to the Unbridled Use of a Guideline‐Compliant ECEP Is the National

Labor Relations Act (NLRA)

• The NLRA – a New Deal Federal Law that Guarantees to Most Private Sector Workers the Right to Engage in Certain Statutorily Protected Activity

• The NLRA Is Enforced by the National Labor Relations Board (NLRB), an Activist Federal Regulatory Agency, Whose General Counsel Is Authorized to Investigate Charges and to Prosecute Employers Who Violate the NLRA by Committing “Unfair Labor Practices” (ULP’s)

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Labor Relations Act (NLRA) (Continued)

• The FSG’s and the NLRA Seek to Accomplish Entirely Different Ends (and, Sometimes, Operate at Cross Purposes) – This May Result in Significant Conflicts and Legal Risks

• The NLRA Is a Legal Minefield for Employers Needing to Conduct Workplace Investigations Because It Protects Employees Who May Be Affected by ECEP’s or Called Upon to Participate in an ECEP Investigation


Labor Relations Act (NLRA) (Continued)

• In Order to Minimize These Conflicts and to Avoid Stepping on an NLRA Landmine, an Employer Must Be Aware of the Following Issues and How to Navigate Its Way Through Them:

– What Rights Are Guaranteed Employees Under the National Labor Relations Act (NLRA)

– What Constraints the NLRA Imposes on All Employers Including Non‐Union Employers

– What Added Obligations Unionized Employers Are Subject to

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Employee Rights Under the NLRA that May Affect the Use/Application of ECEP’s

• Under the NLRA, All Employees – Regardless of Whether They Are Unionized or Not – Enjoy the Right To:

– Form/Join/Assist Labor Organizations

– Bargain Collectively Through Representatives of Their Own Choosing

– Engage in “Self Organization and Other Concerted Activities for the Purpose of Collective Bargaining or Other Mutual Aid or Protection

– Refrain from Any of the Foregoing

– NLRA, Section 7, 29 USC §157 (Commonly Referred to as Section 7 Rights)

– Section 7 Generally Does Not Protect Statutory SupervisorsWho Are Treated as “Non‐Employees” Under the NLRA

NLRA Constraints on All Employers Including Non‐Union Employers Affecting ECEP’s

• It Is an Unfair Labor Practice for an Employer

– To “Interfere With, Restrain or Coerce” Employees in the Exercise of the Rights Guaranteed in Section 7

NLRA, Section 8(a)(1), 29 USC §158(a)(1)

– As We Will See, the Concept of Section 7 Rights and What Conduct Constitutes “Protected Concerted Activities” (PCA) Can Be Subtle, Surprisingly Broad and Often Unclear

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NLRA Constraints on All Employers Including Non‐Union Employers Affecting ECEP’s (Continued)

– ECEP Provisions that Are Worded in Such a Way that They Can Be Read by a “Reasonable” Employee as Prohibiting/Limiting Employees from Engaging In PCA “Interfere with, Restrain and/or Coerce Employees in the Exercise of Their Section 7 Rights”

– The NLRB Engages in Excessive Administrative Word Parsing Just to Find Interference with Section 7 Rights and to Invalidate a Rule/Policy

– According to the NLRB, the Mere Existence of Such “Overbroad” ECEP Provisions Has a Chilling Effect on the Exercise of Section 7 Rights and Violates NLRA Section 8(a)(1) – Even If They Are Never Applied or Enforced – Absent Proof of a Legitimate and Substantial Business Interest


• Examples of ECEP‐Like Provisions That Have Been Found Facially Invalid:

– Investigatory Confidentiality – Banner Health System, 358 NLRB No. 93 (2012) – A Policy Prohibiting Employees from Discussing an Ongoing Investigation with Fellow Employees Is Unlawful Absent a Legitimate Business Justification that Outweighs Section 7 Rights

– Third Party Informational Confidentiality – Flex Frac Logistics, LLC, 362 NLRB No. 120 (2014) – A Rule Prohibiting the Disclosure of Personnel Information/Documents Outside the Company Is Unlawfully Overbroad as It May Interfere with Employee Discussions with Union Representatives/Organizers

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• Examples of ECEP‐Like Provisions that May Be Found Facially Overbroad and Invalid:

– Compulsory Investigative Participation – A Rule/Policy that Requires Employee Participation in the Investigative Process and Unqualified Employee Cooperation May Be Subject to Legal Challenge Because, Under the NLRA, an Employee May Have a Section 7 Right to Refuse that Cooperation or to Be Forthcoming with Information on the Theory that Refusal Is for the “Mutual Aid and Protection” of Employees ‐ Especially Where the Investigation Involves, Touches Upon or Implicates Another Employee’s Conduct that Is Statutorily Protected. Albertson’s, LLC, 361 NLRB No. 71 (2014)

Reason to Use a Johnnie’s Poultry Warnings When Interviewing Employee Witnesses


• Likewise, the Enforcement of ECEP Provisions that Preclude or Punish PCA “Interfere with, Restrain and/or Coerce Employees in the Exercise of Their Section 7 Rights

• According to the NLRB, the Application/Enforcement of an ECEP’s Provisions that Preclude an Employee from Engaging in PCA or Punishes Employees for Doing So Will Also Violate NLRA Section 8(a)(1) – Even If the Provision Is Lawful on Its Face and Regardless of the Employer’s Motive

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• An Example of ECEP Enforcement that May Violate the Law Because It Precludes or Punishes PCA:

– Weingarten Rights – Based on the Supreme Court’s Decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) – an Employer May Not Proceed With an Investigative Interview that Is Likely to Lead to an Employee’s Discipline If/After the Employee Requests that a Union Representative and/or, Probably, a Fellow Employee Be Present


Where That Happens, an Employer’s Weingarten Options Are to:

1. Grant the Employee’s Request and Delay the Interview Until a Representative/Co‐Worker Can Be Present

OR

2. Give the Employee a Choice of Being Interviewed Without Representation or Ending the Interview, Whereupon the Employer Will Act on the Information It Has/Can Get Without Conducting the Interview

An Employer May Never Discipline or Retaliate Against an Employee for Asking for Union Representation/a Co‐Employee’s Presence

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The NLRA‐Derived Duties/Obligations of Unionized Employers Affecting ECEP’s

• Unionized Employers Are Under a Statutory Duty to Recognize and Bargain with Any Union(s) Designated/Selected for the Purpose of Collective Bargaining by a Majority of Employees in an Appropriate Bargaining Unit

• NLRA, Section 9(a), 29 USC §159(a)

• To Bargain Collectively Is the Performance of the . . . Obligation of the Employer . . . to Meet and Confer in Good Faith [with the Representative of the Employees] with Respect to Wages, Hours, and Other Terms and Conditions of Employment [or Any Change Therein], or the Negotiation of an Agreement, or Any Question Arising Thereunder . . . .

• Terms and Conditions of Employment = Mandatory Bargaining Subjects

NLRA, Section 8(d), 29 USC §158(d)

The NLRA‐Derived Duties/Obligations of Unionized Employers Affecting ECEP’s (Continued)

• It Is an Unfair Labor Practice for an Employer

– To Refuse [or Fail] to Bargain Collectively with a [Union Chosen/ Selected by a Majority Of Employees in an Appropriate Bargaining Unit with Respect to the Implementation or Change] in Any term and Condition of Employment

NLRA, Section 8(a)(5), 29 USC §158(a)(5)

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• The Statutory Phrase, “Term and Condition of Employment” [Over Which an Employer Must Bargain] Is a Very Broad, Elastic and Ever‐Changing Concept

• The Phrase Pertains to Almost Anything and Everything that an Employee May Receive or Be Expected to Do as a Condition/Consequence of the Employee’s Employment

• The NLRB – and Especially the Current NLRB ‐ Is Highly Likely to Declare a Unionized Employer’s ECEP that May Affect Employee Working Conditions a Mandatory Bargaining Subject


• This Could Mean the Following:

– If a Unionized Employer Implements or Makes Changes to an ECEP and Applies the ECEP to Unionized Workers Without Bargaining with Their Union, Then the Employer’s Implementation/Change Violates Section 8(a)(5)

– If a Unionized Employer Implements or Makes Changes to an ECEP Without Bargaining and Enforces the ECEP, Resulting In An Adverse Action Against a Unionized Worker, Then That Adverse Action Also Violates Section 8(a)(5) – Even Though the ECEP and Its Application Are Fully Compliant with the FSG’s

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And the NLRA Hits Just Keep on Coming for Unionized Employers – the Duty to Provide Information

• In Addition to Probably Having to Bargain with a Union Over the Implementation of/Changes Made to an ECEP, Unionized Employers Are Also Obligated to Honor a Union’s Demand for Non‐Privileged Information that Is Relevant to

• Definition of a Grievance – Any Question About Working Conditions Arising Under a Contract or Between Contract Terms, e.g., an Adverse Action Against a Bargaining Unit Employee Resulting from an ECEP Investigation

• Very Loose/Low Standard of Relevance

– Information Relating to the Bargaining Unit Presumptively Relevant

– Non‐Bargaining Unit Information Is Relevant If It Is Likely to Lead to Useful InformationPertaining to the Grievance

And The NLRA Hits Just Keep On Coming for Unionized Employers – the Duty to Provide Information

(Continued)

• Witness Statements – Piedmont Gardens, 359 NLRB No. 46 (2012), aff’d, 362 NLRB No. 139 (2015) – Upon a Union’s Request, a Union Is Entitled to Receive Investigative Witness StatementsWhich the Board Sees as Being Fundamentally the Same as Any Other Type of Non‐Privileged Information that Is Relevant to a Dispute and Necessary to a Union’s Performance of Its Representative Duties

• Where an Employer Has Confidentiality Concerns Over a Statement’s Production, It Must Promptly Raise the Concerns and Bargain with the Union Over Them

• If the Employer and the Union Fail to Resolve Those Concerns Through Bargaining and Production, the Issue Will Be Resolved by the Board, Which Will Balance the Union’s Need for the Statement Against Any Legitimate and SubstantialConfidentiality Interests Established by the Employer

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TAKE AWAYS

• If You Are a Unionized Employer, Take Steps to Make Sure that Your ECEP and Any Changes Therein Are Properly Bargained Over with Your Employees’ Union(s)

• Carefully Review Your ECEP to Ensure the Facial NLRB Validity of Its Provision – Avoid Ambiguous Language that May Be Read as Affecting the Free Exercise of Section 7 Rights

• Train Your Supervisors and Managers on Your Employees’ Rights and Their Own Obligations as Managers/Supervisors Under the NLRA

MORE TAKE AWAYS

• Educate Supervisors and Managers on How to Administer an ECEP and Conduct an Effective Workplace Investigation Without Stepping on NLRA Landmines

– Weingarten Rights

– Possible Use of Johnnie’s Poultry Statements to Avoid the Claim of a Coercive/Involuntary Interview

• Remember that the Investigation You Conduct and the Statements/Information that You Generate May Be Reviewed by Third Parties Outside Compliance and Used for Purposes Other Than Compliance, e.g., by Unions During the Course of Grievances and Arbitrations, in NLRB Cases or in Litigation

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