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Presentation on theme: "October 24, 2013 CONDUCTING A WORKPLACE INVESTIGATION A PRESENTATION FOR PASCO."— Presentation transcript:


2 Once an employer receives a complaint of harassment (or any unlawful employment practice), the employer has a duty to investigate and, if necessary, correct the behavior. The Duty to Conduct an Investigation

3 Duty to Whom?  Complainant – investigation is a “reasonable step” to prevent discrimination, harassment, etc.  Affirmative Defense if employee fails to take advantage  Accused – employer must have “good cause” to terminate an individual for alleged misconduct  Courts recognize negligent investigation as separate cause of action

4 When to Investigate

5 Do I Need to Investigate This Claim? Complaint Amounts to Unlawful Conduct Additional Facts, Documents, or Opinions/Experts Needed Perform Investigation! Employee Relations Issue. Not Unlawful Conduct Do Not Need Additional Information No Investigation Needed

6 Types of Claims Commonly Requiring Investigation  Harassment  Discrimination  Retaliation  Workplace Violence  Employee Theft

7 Requirements of Investigation

8 Most Important Characteristics Conduct an investigation to arrive at good faith conclusion based on reasonable grounds supported by substantial evidence. Cotran v. Rollins Huding Hall Int’l Inc. ; Silva v. Lucky Stores, Inc.  Begin promptly after receiving complaint  Have a policy regarding investigations  Provide both sides opportunity to present position and contradict relevant statements  Allows for progressive discipline  Designate well-trained individual to investigate  Base ultimate findings on objective evidence  Proper investigation differs by circumstance

9 Preliminary Issues To Consider

10 Who Should Investigate?  Experience/Background  Neutrality and Impartiality  Approved by Both Parties  In writing  Typically HR Personnel  Inform Need to Know Persons

11 Documents/Evidence Needed  Personnel File  Performance Appraisals  Email Communications  Prior Investigations Performed  Voicemail/ Cell Phone Communications

12 Applicable Policies  Personnel Polices  Handbook  Memos  Benefits Books  Collective Bargaining Agreements  Law

13 Interim Actions Duty to take interim steps to stop alleged harassment, protect employees, organization property, or integrity of an organization during an investigation. Bradley v. Dept. of Corrections & Rehab (2008); Swenson v. Potter (9th Cir. 2001)  Typically Involves Removing Accused  Temporary Transfer  Administrative Leave Paid/Unpaid Contact Person/Return Process Notice NOT disciplinary  Proceed Carefully with Complainant

14 Witnesses  List of Witnesses  Complainant  Accused  Suggested Witnesses  Is there a preferred order?  Location of Interviews  Written Statements Prior to Interviews

15 Conducting the Investigation

16 Initial Meeting With Complainant Ask Questions 5 W’s Repeated or Isolated Witnesses or Persons Told Written Materials Conclude Meeting Thank Complainant Anti- Retaliation Confidentiality Process No promises Document Writing from Complainant Issue Confirmation Memo Identify issues, investigator, and accused Outline Process

17 Meeting With Accused  Before meeting put together outline with facts  Put accused at ease  Explain no decisions made yet  Outline of process  If says complainant is lying ask for motivation  Ask for supporting documents and witnesses

18 Interviewing Witnesses  Keep in Mind Possible Motivations  Explain the Process  Stress Confidentiality  Inform Only to Extent Necessary  Ask for Additional Information/Witnesses

19 Helpful Tips for All Interviews  Have a Checklist  Prepare Opening Statement  Have Helpful Documents  Document Relevant Facts  Observe and Record Demeanor/behavior  Open Ended  Broad to Narrow  Listen and Follow-Up  Flexible Q’s  Ask Hard Q’s  Get Chronology  No Leading Q’s PrepareEffective Questioning

20 Assessing Credibility  To Do Immediately After Interviewee Leaves  Compare Demeanor to Typical Behavior  Body Language  Reactions to Allegations  Did Witness Inspire Confidence  Forthcoming?  Logical Consistency  Chronology  Common Sense

21 Preparing an Investigation Report

22 Contents of Report  Allegations Made and Relevant Facts  Date Investigation Began and Completed  Name of Investigator and Neutrality  Name and Dates of Interviewees  Key Factual Finding and Analysis  Application of Guidelines (policies)  Final Decision and Conclusion

23 Instituting Corrective Action

24 Disciplinary Actions  Options Available:  Oral, Written, or Final Warnings  Separation or Transfer  Demotion or Reduction in Pay  No Raise or Bonus  Additional Training or Monitoring  Suspension (with or without pay)  Termination  Considerations:  Notice  Consistency  Confidence in Investigation  Employee History/Mitigation

25 Consider Who Should Be Involved In Making Decision  Must be Objective and Unbiased  Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011) – Employer can be held liable for actions taken by unbiased decision-maker if non-decision maker influenced the adverse action with his own discriminatory animus.

26 Corrective Measure – Reasonably Calculated to End Harassment  If first measure is not effective, more severe measures must be taken.  If employer’s actions do not stop unlawful conduct, they may not establish the affirmative defense.  Question is if behavior stopped  Intlekofer v. Turnage, 973 F.2d 773 (9 th Cir. 1992) did not meet obligation where only held counseling sessions for harasser  Star v. West, 237 F.3d 1036 (9 th Cir. 2001) did meet obligation where held counseling and changed shifts  Should be consistent with past measures

27 Meet With Complainant and Accused (Separately)  Complainant and Accused  Explain Issues, Steps Taken, and Conclusions Drawn  Discuss Actions Being Taken  Explain Appeals Process and Ability to Bring New Info  Notify in Writing  Stress Confidentiality  Complainant  Rights if any retaliation  Accused  Anticipate Questions and Have Answers

28 Litigation Issues

29 Create Investigation File  Keep All Information for Investigation Separate  Create Final Investigation File  Include Written Communications from Complainant Issue Confirmation Memo Admin Leave Notice Investigation Summary Results and Notifications Supportive Notes and Documentation Written/Electronic Communications  Destroy all Drafts  Mark Confidential

30 Protecting Attorney/Client Privilege  Telling your attorney facts does NOT make them undiscoverable  Address written communication to attorney  Write “Privileged and Confidential”  Copy only people who need to know  Do not share or discuss with others

31 Responding to Outside Agencies  Employee may file charge with DFEH, EEOC, Labor Commissioner, OSHA  Work with counsel  Choose single person for all communication with the agency  Draft letter summarizing investigation

32 Privacy  Protect privacy of individuals as much as possible  Make all documents “Need to Know”  Create policies stating that there is no expectation of privacy at work

33 Question and Answer


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