Presentation on theme: "Conducting a workplace investigation"— Presentation transcript:
1 Conducting a workplace investigation A Presentation forPASCOOctober 24, 2013
2 The Duty to Conduct an Investigation 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.
3 Duty to Whom?Complainant – investigation is a “reasonable step” to prevent discrimination, harassment, etc.Affirmative Defense if employee fails to take advantageAccused – employer must have “good cause” to terminate an individual for alleged misconductCourts recognize negligent investigation as separate cause of action
5 Do I Need to Investigate This Claim? Complaint Amounts to Unlawful ConductAdditional Facts, Documents, or Opinions/Experts NeededPerform Investigation!Employee Relations Issue. Not Unlawful ConductDo Not Need Additional InformationNo Investigation Needed
6 Types of Claims Commonly Requiring Investigation HarassmentDiscriminationRetaliationWorkplace ViolenceEmployee Theft
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 complaintHave a policy regarding investigationsProvide both sides opportunity to present position and contradict relevant statementsAllows for progressive disciplineDesignate well-trained individual to investigateBase ultimate findings on objective evidenceProper investigation differs by circumstance
13 Interim Actions Typically Involves Removing Accused 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 AccusedTemporary TransferAdministrative LeavePaid/UnpaidContact Person/Return ProcessNoticeNOT disciplinaryProceed Carefully with Complainant
14 Witnesses List of Witnesses Is there a preferred order? ComplainantAccusedSuggested WitnessesIs there a preferred order?Location of InterviewsWritten Statements Prior to Interviews
16 Initial Meeting With Complainant Ask Questions5 W’sRepeated or IsolatedWitnesses or Persons ToldWritten MaterialsConclude MeetingThank ComplainantAnti-RetaliationConfidentialityProcess No promisesDocumentWriting from ComplainantIssue Confirmation MemoIdentify issues, investigator, and accusedOutline Process
17 Meeting With Accused Before meeting put together outline with facts Put accused at easeExplain no decisions made yetOutline of processIf says complainant is lying ask for motivationAsk for supporting documents and witnesses
18 Interviewing Witnesses Keep in Mind Possible MotivationsExplain the ProcessStress ConfidentialityInform Only to Extent NecessaryAsk for Additional Information/Witnesses
19 Helpful Tips for All Interviews PrepareEffective QuestioningHave a ChecklistPrepare Opening StatementHave Helpful DocumentsDocument Relevant FactsObserve and Record Demeanor/behaviorOpen EndedBroad to NarrowListen and Follow-UpFlexible Q’sAsk Hard Q’sGet ChronologyNo Leading Q’s
20 Assessing Credibility To Do Immediately After Interviewee LeavesCompare Demeanor to Typical BehaviorBody LanguageReactions to AllegationsDid Witness Inspire ConfidenceForthcoming?Logical ConsistencyChronologyCommon Sense
22 Contents of Report Allegations Made and Relevant Facts Date Investigation Began and CompletedName of Investigator and NeutralityName and Dates of IntervieweesKey Factual Finding and AnalysisApplication of Guidelines (policies)Final Decision and Conclusion
24 Disciplinary Actions Options Available: Considerations: Oral, Written, or Final WarningsSeparation or TransferDemotion or Reduction in PayNo Raise or BonusAdditional Training or MonitoringSuspension (with or without pay)TerminationConsiderations:NoticeConsistencyConfidence in InvestigationEmployee History/Mitigation
25 Consider Who Should Be Involved In Making Decision Must be Objective and UnbiasedStaub v. Proctor Hospital, 131 S.Ct (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 stoppedIntlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992) did not meet obligation where only held counseling sessions for harasserStar v. West, 237 F.3d 1036 (9th Cir. 2001) did meet obligation where held counseling and changed shiftsShould be consistent with past measures
27 Meet With Complainant and Accused (Separately) Explain Issues, Steps Taken, and Conclusions DrawnDiscuss Actions Being TakenExplain Appeals Process and Ability to Bring New InfoNotify in WritingStress ConfidentialityComplainantRights if any retaliationAccusedAnticipate Questions and Have Answers
29 Create Investigation File Keep All Information for Investigation SeparateCreate Final Investigation FileIncludeWritten Communications from ComplainantIssue Confirmation MemoAdmin Leave NoticeInvestigation SummaryResults and NotificationsSupportive Notes and DocumentationWritten/Electronic CommunicationsDestroy all DraftsMark Confidential
30 Protecting Attorney/Client Privilege Telling your attorney facts does NOT make them undiscoverableAddress written communication to attorneyWrite “Privileged and Confidential”Copy only people who need to knowDo not share or discuss with others
31 Responding to Outside Agencies Employee may file charge with DFEH, EEOC, Labor Commissioner, OSHAWork with counselChoose single person for all communication with the agencyDraft 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
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