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Conducting Investigations Ginger D. Schroder, Esq. Schroder, Joseph & Associates, LLP.

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Presentation on theme: "Conducting Investigations Ginger D. Schroder, Esq. Schroder, Joseph & Associates, LLP."— Presentation transcript:

1 Conducting Investigations Ginger D. Schroder, Esq. Schroder, Joseph & Associates, LLP

2 Discussion Topics Standards for investigation Establish importance of effective investigation skills Skills necessary for conducting an effective internal investigation When to investigate Who should investigate How should the investigation be conducted-special issues How should the evidence be evaluated Determining what corrective action to take

3 Standards of Proof “Beyond a reasonable doubt” Clear and convincing evidence Preponderance of the evidence Good faith investigation / reasonable conclusion Issue of investigation supporting a decision that must be held to a higher standard

4 Common Standard Most of the arbitrated cases involving discipline/discharge (69.68 percent),.... Applied a “preponderance of the evidence” proof standard In cases involving quasi-criminal or criminal conduct or stigmatizing behavior, many arbitrators apply a higher standard of proof, typically “clear and convincing.”

5 Investigation Standards EEO Investigations Focus on alleged victim & work environment EEOC guidelines Union Situations Focus on violation of published house rules “Just Cause” test Contract Employees Focus is on breach of contract Bound by contract procedures All Others Focus on legitimate, non- discriminatory reason Procedures at employer’s discretion “Fairness” seems to be standard Exceptions for certain statutes (USERRA, UI, COBRA) Wrongful behavior

6 Identify the Purpose of the Investigation Why is the investigation necessary? - Internal formal complaint or grievance - Anonymous complaint - EEOC, DOL, OSHA, NYSHRD, notice - “This isn’t a complaint” complaint - Changes in conduct, behavior, productivity, attitude - Losses - Misconduct - Other?

7 Identify the Purpose of the Investigation (cont.) What is the investigation intended to accomplish? - Uncover and stop employee misconduct - Establish record for decisionmaking - Reveal weaknesses in employer policies, procedures, processes - Prevent charge-filing or litigation - Avoid negative publicity - Limit liability for organization and managers

8 Preparing for the Investigation It is critical that the any necessary investigation be prompt and effective! Time is often of the essence EEO cases require immediate investigation Union and individual contracts generally have time frames Long lag times will affect your credibility

9 When To Investigate When you knew or should have known that possible misconduct has occurred “Formal” complaint is not necessary No such thing as “off the record” or “confidential” as supervisor/manager knowledge is imputed to employer

10 Is a Formal Investigation Necessary? Employee initiates issue Determine: Employee misunderstands the organization’s policy There is a lack of communication between employee and another (supervisor) No other facts are needed to resolve the issue No other outside resources are necessary to resolve the issue Issue is susceptible to informal resolution Therefore, no internal investigation is necessary

11 Is a Formal Investigation Necessary? Employee initiates issue You determine: You need additional facts Employee cannot supply you with facts You need to speak to others You need the assistance or input from those with special expertise Therefore, you initiate an internal investigation


13 Instilling Confidence in the System and You---Identify bias and concerns about bias and remedy same to the extent feasible “To tell you the truth, I don’t feel that you are the right person to handle this issue. Only _____________ can understand the kind of discrimination minorities in this organization face every day of the week.”

14 Select the Appropriate Investigator Criteria for selection: - Reputation for honesty, credibility and confidentiality - Unbiased - General knowledge of legal issues - Training or experience in conducting investigations - Ability to serve as Company witness, if necessary - Attorney-Client privilege?

15 Who Should Investigate Supervisors/Managers/Senior Administration Fine for day-to-day infractions, union & contract situations Need to be trained on procedure & standards Human Resources Managers Preferable for EEO investigations Need to receive specialized training

16 When You May Want Counsel To Investigate  If allegations involve high-level official and organization needs to ensure that the investigation is above reproach;  If allegations are extremely serious;  If litigation is anticipated.

17 Outside Investigators Limit to special situations Conflict situations Highly sensitive situations As noted prior, you may use attorneys internal or otherwise They will not be able to defend the employer in any subsequent litigation Need someone with qualifications and experience in the field Will be held responsible if mistakes are made They should be good witnesses (credible, knowledgeable, organized, thorough)

18 Prepare a Strategy - Prepare timeline for investigation - Consider order of investigative actions - Consider order of witnesses - Do you need to speak to other witnesses before the accused? - Should one employee be interviewed before another to avoid possible influencing of testimony? - Can you compel the accused to an interview-teacher situations, public employees and crimes - Decide parameters of confidentiality

19 THE PROCESS Identify the scope of the investigation Outline the organization’s expectations for the employee raising the issue If EEO or conflict between employees--determine if it’s necessary to separate alleged “victim” and the “accused” and interview the relevant witnesses Gather and review relevant documents-often helpful in advance Identify any legal issues and seek advice-examples later Evaluate the evidence & decide Determine appropriate remedial action and type of post investigatory documentation to prepare

20 Identify the Documents to Be Reviewed - Personnel documents (warnings, evaluations, etc.) - Timecards and schedules - Manager memos, notes about the incident - Business documents - Expense reports/receipts - Journals, diaries, notes - Security tapes/videos - Consider Social media/electronic communication (e-mails/texts) - ???

21 Identify Any Other Investigative Actions to Be Taken Internet Searches Video Surveillance Internet and Computer Monitoring Telephone Monitoring Email, Texts, IM Monitoring GPS Monitoring Searches Lie detectors

22 Scope of Investigation EEO Situations Accused receive policy and/or training Alleged victim harassed or discriminated against Work environment tainted Union Situations Union receive rules Accused receive rules Did accused violate rules Contract Employee Contract may contain duties & performance standards Was contract violated Others Employee notified of law, policy, procedure, performance standard Job description Employee handbook Policies or procedures Law Did employee violate the above

23 Interviews Who should be interviewed Third party reporter Alleged victim Accused/wrongdoer (note special rights/non-self incrimination situations with teachers/public employees) Witnesses identified by parties How should the interviews be done One by one Private May bring “representative” in certain situations Unionized employees entitled to have representative in certain situations (page 25) or by contract as a right Non-union employees not required

24 Representation at Interview The right to be informed, in advance, of the subject matter of disciplinary interviews. The potential right to union representation at such an interview.

25 The role of the union representative Will ask for time to talk in private before the meeting; Will take notes & record the names, dates questions; Will attempt to secure "due process" and fair treatment; Will work to make sure the grievant/interviewee is protected; Will object to any attempts to anger or frighten the interviewee; Will call a “timeout” to caucus or recess as needed; Will ask for questions to be rephrased or explained as necessary; Will make no permanent or undo-able decisions at that interview; Cannot impede, interfere in the process of obtaining information

26 Cadet Rights 1. On February 1, 1994, a 3020a hearing panel determined that Andre Cadet, a tenured teacher, was guilty of misconduct with regard to his romantic relationship with a female student. The panel dismissed the charge of insubordination related to Cadet's refusal to answer questions before the Special Commissioner of Investigations (SCI). 2. On April 1, 1996, the Appeal of the Board of Education of the City School District of the City of New York against Andre Cadet was held. 3. While the Commissioner of Education upheld the appeal in part, the Commissioner agreed with the conclusion of the hearing panel chair that the authority cited by the New York City School District regarding Cadet's obligation to testify before the SCI was in conflict with Education Law 3020-a, since that statute is the sole method by which tenured teachers can be disciplined in New York State.

27 4. As a result of this decision, a teacher need not answer questions in any pre-hearing investigation, which precedes a 3020-a proceeding. 5. If a tenured teacher is asked questions in an investigation that the teacher believes could lead to disciplinary action, the teacher has the right to assert Cadet. By doing so, the teacher cannot be held insubordinate when refusing to answer such questions.

28 Interviews What should be discussed Confidentiality, no retaliation (EEO cases) Need for honesty Details (dates, times, description of what occurred, parties involved, witnesses, documents) What to expect after investigation Instructions on who to contact after interview if they have questions or concerns (EEO cases)

29 With the Witness Contracting for expectations Showing sensitivity toward interviewee Putting interviewee at ease

30 Interview Questions - Ask open-ended questions - Ask follow-up questions - Ask repetitive questions - Look for non-verbal signs - Avoid loaded questions - Avoid accusatory questions - Avoid compound questions - Don’t cut off the witness’ answer

31 Develop the Facts with the Interviewee Within the relevant time frame, review blocks of time, and for each block establish: - Exactly what happened - When did it happen - Where did it happen - What was said and by whom - Who was present and what do they know - Who might have relevant information - Are there any documents or other evidence

32 Employee Raising the Issue Ask what the employee raising the issue wants the organization to do - Transfer, counseling/discipline of offender, change policies, training, etc. - Don’t promise what the result will be

33 Employee Raising the Issue Issue confirmation with employee raising the issue Identify issue (confirmation) Identify facts provided by employee Confirm these are all issues raised

34 Meet With Accused  Meet privately and disclose the complaint;  Stress that: - No determination has been made; - Interference with investigation and/or retaliation is misconduct.  Review the allegations and obtain accused party’s responses. - Identify counter-witnesses. - Elicit opinion as to why complainant might be making allegations.

35 How To Investigate: Interviews What to watch for First-hand knowledge versus hearsay or rumor Credibility & bias Ability to corroborate testimony of others What to do Take notes, summarize statements using witness’s own words Have witnesses review and make corrections Signature optional

36 A Note About Notes Investigative notes:  Create a record to guide the investigation;  Preserve the record as memories fade. In making notes:  Strive to be accurate;  Take care to use quotation marks;  Be discreet in your annotations of documents.

37 Searches, Surveillance and Monitoring Establish the expectation of privacy New Jersey v. TLO, 469 US 325 (1985)-4 th amendment applies to school districts Should be reasonable in scope—two fold inquiry, was action justified at its inception and was there a reasonable relationship in the search’s scope to the circumstances that justified the initial interference Policy can offset privacy expectations

38 O’Connor v. Ortega, 480 US 709 (1987) Public Employer No policy Search of desk of employee still upheld Search arose from a reasonable suspicion that search of hospital property would provide evidence of misconduct Workplace defined as work related areas and items generally in employer’s control Examples in that case Differentiated between these public type spaces and the employee’s purse, luggage, briefcase, car Absent any legitimate regulation or actual practice or procedure an employee has an expectation of privacy in those private items (pages 27-28)

39 Telephone Call Monitoring  Federal Wiretapping Law prohibits interception of telephone calls.  Exceptions: Consent – express or implied (from policy and continued employment) Business purpose

40 E-Mail Monitoring  Federal Electronic Communications Privacy Act (ECPA) is amendment to Wiretapping Act Protects e-mail communications in transit  Federal Stored Communications Act Protects e-mail in storage (in-box)  Service Providers (i.e. employers who provide the e- mail service) are exempted and can monitor emails

41 E-mail Monitoring (cont.)  Employees tend to think of e-mail as private communication  Organizations must implement a policy to notify employees that e-mail may be monitored and that employees have no right of privacy in their e-mail.

42 Text Message Monitoring City of Ontario v. Quon – City reviewed text messages sent on city-provided pagers. Employee sued for invasion of privacy under Federal and California constitutions. In limited decision, the Supreme Court held that the City’s search was reasonable. – No ruling on whether employees have right of privacy in communications on employer-provided equipment – Recognized employer policies will govern expectations of privacy

43 Text Message/Instant Message Monitoring  Organizations must implement a policy to notify employees that their text messages may be monitored and that employees have no right of privacy in their text messages.  This should also apply to the use of instant messaging (IM) in the workplace.

44 Decide Parameters of Confidentiality Identity of complainant and accused may or may not be material to investigation.  To corroborate specific allegations, generally must reveal identities;  He said/she said, sometimes can obtain information without disclosing identities. Either way, stress with all interviewees the importance of avoiding discussion/gossip.

45 Interim Actions

46 Pre-Investigation Employment Actions Determine if, at the pre-investigation stage, it is necessary to: - Determine organization’s rights to interim action - Place the complainant on paid leave pending the investigation - Place the accused on leave (paid or unpaid) - Temporarily transfer employees - Be careful – transferring the complainant against his/her wishes can lead to further claims - Change supervisory responsibilities - Address safety concerns

47 Key Points of Consideration Will administrative leave take place before or after you confront the accused? Will removing the accused make things better or worse? Who should you consult beforehand? HR? Legal? Is a risk or threat assessment necessary?

48 Key Points of Consideration How will you respond to the accused when asked why removing him or her is necessary? What, if anything, should co-workers and members of the public be told about the employee’s departure?

49 Key Points of Consideration What are the terms of the leave? With pay? Who should he or she contact? What should he or she do during that time?

50 Reviewing Documents Which Documents Should Be Reviewed Documents identified by parties or witnesses Company records that may corroborate one side or the other Ask all interviewees for notes taken at any time Personnel files & discipline records of the parties Focus first on company records Precautions with company records Restricted access to records (medical, EEO) Email and computer records require policy/notice Maintaining confidentiality of records

51 Reviewing Documents Access to non-company records will be limited Subpoenas generally not available without suit/charge/motion for pre-suit discovery HIPAA and other privacy concerns will require you to obtain consent forms (i.e. telephone records) May have to rely on voluntary cooperation by third parties Be careful about workers’ compensation records Privacy concerns ADA issues

52 How To Investigate: Other Methods Lie Detectors Federal and state laws different Very risky Deferring to Government Agencies Typically police or regulatory agencies You lose control over timing and focus of investigation Management & HR issues not an issue

53 How To Investigate: Other Methods Private “Investigators” Will be considered “agents” of company Ineptness can result in negligence claims Considerations when retaining expert Qualifications & reputation of investigator Scope of investigation Type of work product Ability to testify and credibility on stand Cost & who pays Confidentiality

54 Evaluating the Evidence Do not make decision until all evidence is gathered Key questions to ask: Did the employee know the rules? Did the employee violate the rules? Are there mitigating circumstances? Is discipline appropriate? Based on legitimate, nondiscriminatory business reason? Consistent with contractual obligations and established company practices? Preponderance of the evidence establish guilt If Just Cause---be aware of the “seven tests”

55 Seven Tests of Just Cause The basic underlying principle in disciplinary cases is that the employer must have "just cause" for imposing the disciplinary action. A common test for determining whether "just cause" existed was developed by Arbitrator Daugherty in the celebrated Enterprise Wire case (46 LA 359, 1966 and 50 LA 83).Enterprise Wire

56 Seven Tests of Just Cause A flat "no" answer to one or more questions indicates that the employer's action was arbitrary, capricious and/or discriminatory in one or more respects, thereby signifying an abuse of managerial discretion and allowing the arbitrator to substitute his/her judgment for that of the employer.


58 Remedial Action Deciding What Discipline to Impose Adhere to stated policies & procedures Other considerations Severity of misconduct Remorse shown by offender (EEO cases) Offender’s discipline record (important for union situations) Treatment of similarly situated persons (important for union situations) Mitigating circumstances

59 Remedial Action Violation Found Discipline the offender Make victim whole, if applicable Inform those who “need to know” Monitor situation to prevent retaliation No Violation Found Inform those who “need to know” Monitor situation to prevent retaliation

60 Documentation Copy of applicable policy, procedure or rule that was violated Interview summaries Copies of documents relied upon Memo summarizing findings Discipline notice Any response from offender

61 Attorney-Client Privilege HOW T PROTECT IT, WHAT IT IS—PAGE 20

62 Final Suggestions Get organized Think through the procedure ahead of time Prepare a checklist Forms can be helpful Get “buy in” to process Make it a routine Be thorough Document

63 Questions

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