Presentation on theme: "Navigating the Waters of a Successful Workplace Investigation"— Presentation transcript:
1Navigating the Waters of a Successful Workplace Investigation Remember to dial in so you can hear the audio portion of the webinar.dial-in:access codeRemember to mute your phone when not speakingPlease do not put your phone on hold!
2Navigating the Waters of a Successful Workplace Investigation Presented by Nancy SheehanPorter Scott(with appreciation to Derek Haynes and Katie Mola)
3Goals for this Presentation Learn what UC policy and the law requires for workplace investigationsLearn why workplace investigations are importantLearn how to conduct a workplace investigationLearn how to write a report on an investigation-View from the end point, but have clear vision of what goes on along the way-Most of you will never find yourself in front of jury-But if something you investigate gets there, we want the process to survive the scrutinty
4U.C. Policies PPSM 12: Non discrimination in employment Policy language is consistent with state and federal law prohibiting discrimination, harassment and retaliation for engaging in protected activity-UC policies will always be the starting point-Policy and question of whether it was violated is the focus of investigation and report
5Policy on Sexual Harassment U.C. PoliciesPolicy on Sexual HarassmentSexual Harassment Policy“Supervisors, managers, and other designated employees are responsible for taking whatever action is necessary to prevent sexual harassment, to correct it when it occurs, and to report it promptly to the Title IX Compliance Officer (Sexual Harassment Officer) or other appropriate official designated to review and investigate sexual harassment complaints.”Also applies to harassment based on any other protected characteristic.-Sexual harassment is focus of a specific state law, but harassment on basis of race, age, religion, disability, marital status, sexual orientation, gender also fall under this
6Procedures for Responding to Reports of Sexual Harassment U.C. PoliciesProcedures for Responding to Reports of Sexual HarassmentSexual Harassment Response ProceduresSexual Harassment Officer is responsible for implementing procedures for prompt and effective response to reports of harassment.Also responsible for maintaining records of investigations, voluntary resolutions, and disciplinary action.All University employees are encouraged to report conduct that may violate the policy.-Check campus local policy
7U.C. Policies Procedures for Responding to Reports of Sexual Harassment Early ResolutionUsed where parties are cooperative and desire to resolve situation at earliest possible stageMay involve fact finding, but no formal investigationFlexible approach, which may involve mediation, remedial education, counseling or agreed upon corrective action as outcomeNot all claims are suitable for this approachFormal InvestigationAccused person must be provided with written request for investigation or summary of claimsFull investigation conducted, including interviews of complainant, respondent and witnessesInvestigation should be completed within 60 daysWritten report should be preparedEarly resolution: this can apply to different types of harassment. More of a mediated approach. Still important to document what took place, what agreements were reached, and why. If there is a subsequent complaint, the viability of the resolution reached on the first complaint will come into issue.-Example: complaint that one employee made a racial comment in presence of another. Offending employee admits doing so. Resolution may consist of attending a cultural sensitivity class and hearing from the complainant about how the remark affected him. Important to remind parties of prohibition against retaliation.-Formal investigations: seem to be more common.
8U.C. PoliciesPPSM 70General policy for addressing complaints from staffAddresses claim that management act adversely affected terms and conditions of employmentNot limited to harassment, discrimination or retaliationThree step processStep II involves appointment of a fact finder and issuance of a report pursuant to local proceduresStep III provides for a hearing before a hearing officer for limited subject matter (including discrimination and retaliation)-Use the policies as the basis. If dealing with an employee subject to PPSM, find the PPSM section that applies to the issue-Step II report: follow same guidelines on doing a fact finding as used for other types of investigations
9California Fair Employment & Housing Act Government Code §12940(k)“It shall be an unlawful employment practice…for an employer…to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”Case law holds that employers are obligated to conduct a prompt, objective, thorough investigation when they learn of a complaint or event that warrants investigation.-This can be separate basis for finding of liability on part of employer (providing underlying claim is proven)-Trend in cases/ what we are seeing-Expectations on the part of jurors and employees: that employer will follow its own policies; that employer is responsible for controlling the behavior of other employees in the workplace.-Employer must know (or should have known) about behavior to do something about it.
10Title VII of the Civil Rights Act of 1964 Also prohibits discrimination and harassment on the basis of protected characteristicsOnce employer knows of harassing/discriminatory conduct it must take prompt corrective action reasonably calculated to end the conduct“The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified. An investigation is a key step in the employer's response and can itself be a powerful factor in deterring future harassment. By opening a sexual harassment investigation, the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace. An investigation is a warning, not by words but by action.” Swenson v. Potter 271 F.3d (9th Cir. 2001)
11The importance of a well done investigation Well done investigations usually resolve issues at the lowest possible level.Well done investigations send a message that the campus expects employees to comply with policies relating to unacceptable conduct.Well done investigations usually result in the parties feeling that they have been treated fairly, no matter what the outcome.Well done investigations will assist in defending the University if litigation is filed.-How many times we have heard plaintiffs say they did not want to sue, but nobody responded to them at the pre-suit level-Dispel myth that investigations done by UC employees will always result in finding in favor of the employee-Worst thing you can do is to stretch to reach a conclusion that is not justified by the facts-We can deal with findings
12Help. Going Down for the Third Time Help! Going Down for the Third Time! (or what can happen if you don’t investigate)Failure to investigate can sink an employer’s shipExample: Employee complained that her supervisor and store manager made lewd jokes about her breasts, and that the supervisor tried to kiss her. Employer did not investigate.Result: Verdict for plaintiff of $1 in economic damages, $35,000 for emotional distress, and $50,000,000 in punitive damages (later reduced to $5,000,000)Kimzey v. Wal-Mart Stores (1997)107 F.3d 568-Trend towards higher verdicts, even in smaller counties-Juries think employers have had sufficient time to “get it”
13Other problems caused by no investigation or a poorly done investigation If a problem does exist, it will not be properly remediatedSends a message to employees that policies don’t really mean what they sayMay cause employee to be reluctant to report future incidents
14Who Should Investigate? Use an investigator who is trained in the skills that are required for interviewing witnesses and evaluating credibility.Person complained of should not have supervisory authority over the investigator.Investigator should be familiar with and follow employer’s investigation policies.-All investigators need training-OTJ or shadow training is a good approach to teach interviewing techniques and report writing
15Who Should Investigate Does not need to be an attorneyInvestigator should be comfortable with his/her role:Be a good listenerBe able to deal with potentially uncomfortable subjectBe discreetBe capable of making findings in the face of conflicting evidenceBe able to write a concise and coherent reportMay end up being deposed/are you comfortable with that, and with testifying in court?
16Steering the Investigative Process Does the investigator understand the issue(s) to be investigated?Does the investigator understand his or her role as a fact finder, not an advocate for either side?Does the investigator understand the time constraints?Law requires a “prompt” investigation, measured on the totality of the circumstancesUC campuses must follow the time periods set forth in their local proceduresIs the investigator familiar with the applicable policies?-Most assignments are done in writing and should define the issue to be investigated and the time frame-UC Policy on responding to reports of sexual harassment requires that accused be given copy of written request for formal investigation or a full and complete copy of the allegations. Be sure to emphasize this must be kept confidential.
17Avoid Catastrophe: Have an Investigation Plan Gather background information before the investigation starts:Identity of Complainant, Accused, and Primary WitnessesWritten complaintPerformance evaluations, recruitment documents, etc.Prior allegations of similar conductPrior corrective actions-In litigation: before we interview a witness or do a depo, we do our background work.-Understand the work environment/what type of work is done in this department?-Just because respondent has had prior corrective action of a similar nature does not mean current complaint is automatically valid…but it may indicate a pattern-Do an outline of questions, timelines are often helpful particularly in retaliation cases
18Avoid Catastrophe: Have an Investigation Plan Most common order of interviews:The complainantKey witnessesThe respondent (accused)Other witnesses identified by the complainant and the respondentFollow up interviews as needed-What if complainant, respondent or witness is out on medical leave? What if witness or respondent is no longer UC employee?-Is it OK to do interviews by phone?
19Avoid Catastrophe: Have an Investigation Plan Where should I conduct the interviews?Should I use a tape recorder?Should I take notes on a laptop during the interviews?What if someone shows up with an attorney?-Importance of doing interviews outside of the direct workplace-UCOP policy on sexual harassment investigations allows complainant and respondent to have a representative present. Investigator has discretion to allow witnesses to have representative present.
20Diving into the Investigation Notify the interviewees of their interviewStart each interview with the admonitionIdentify your role as an investigator and fact finderEmphasize importance of answering questions fullyAdvise interviewee that the investigation is confidentialHowever, if litigation is filed the investigation materials may be subject to disclosureAdvise interviewee that it is against UC policy and illegal for anyone to retaliate against a person for making a complaint of harassment or discrimination. If interviewee believes he/she has been subject to retaliation, they need to notify proper source-Wellpoint Health Networks v. Superior Court (1997) 59 CA4th 10: If employer is relying on fact that it did investigation as a defense (e.g. vicarious liability) it must turn over report and materials in disco. Adequacy of investigation becomes critical to issue of whether employer took appropriate remedial action.-Write out your admonitions and use them consistently-
21What do I do if the complainant says he/she really doesn’t want anything done about the situation? “This is a catch-22 situation. If an alleged victim of sexual harassment asks a person of authority to whom she has reported the harassment to keep it confidential, and the employer attempts to reduce the emotional trauma on the victim by honoring her request, it risks liability for not quickly and effectively remedying the situation. A reasonable jury might hypothesize that it requires substantial emotional strength for a harassment victim to overcome the embarrassment and intimidation engendered by the abuse, report the harassment endured, and face becoming the subject of office schadenfreude. Too narrow a view of what is appropriate in reacting to an employee's conflicting needs for protection and for privacy may inhibit well-founded, valid complaints; too broad a view may unreasonably expand employers' duties beyond what Title VII requires and lead to unpleasantly gelid work environments.” (Gallaher v. Delaney, 139 F.3d 338 (2nd Cir. 1998)Schadenfreude: satisfaction or pleasure felt at someone else's misfortune.Gelid: very cold; icy-Explain that even if complainant “just wants to make a report”, UC has obligation to ensure that workplace rules are not being violated-Try to find out the cause for concernLaw requires employer to investigate and take action even if complainant doesn’t want this
22Diving into the Investigation Ask open ended questionsAsk follow up questionsWho, what, when, where, whyAsk questions designed to flush out evidence pertaining to motiveLook for contradictions and the reasons for themImportant of writing out questions in advanceCACI re credibility
23Diving into the Investigation Tailor questions to the claims Use the UC policy as your guidelinePPSM 12Sexual Harassment PolicyExample: sexual harassmentWas the conduct in issue sexual in nature?Difference between expletives and directing language at a specific personDid the conduct unreasonably interfere with a persons’ work performance?If behavior is physical, one instance might be enoughIf behavior is verbal, one comment may not sufficeExample: “F you” vs. I want to F you.Must consider totality of circumstances-Does not matter if respondent did not intend to offend. Issue is whether the complainant was actually offended, and whether that offense is objectively reasonableHow did the behavior affect you? Did you leave work that day?
24Diving into the Investigation Tailor questions to the claims Was the conduct unwelcome on the part of the recipient?Was there a previous relationship between the complainant and the respondent where such conduct was welcome? If so, was there a discussion/action that should have or did notify the respondent that such conduct was no longer welcome?
25Diving into the Investigation Tailor questions to the claims Example: Race discrimination in promotionQuestions for interview panel:Were all applicants asked the same questions?Why are your notes on the interviews of some applicants more scarce than notes for interviews of others?What qualifications did the successful candidate have that the complainant did not have?Did you know any of the candidates apart from the interview process?
26Diving into the Investigation Tailor questions to the claims Example: Race discrimination in promotionQuestions for complainant:Did any of the interviewers say or do anything during the interview that you felt was racial in nature?Why do you have that opinion?Is there any reason other than the fact that you are of a different race than the person selected that you believe race was a factor in this decision?Discuss fact that racial or gender bias is rarely overt, but at times complainants rely on false syllogism
27Diving into the Investigation Tailor questions to the claims Example: Retaliation claimDid the complainant make a complaint of harassment or discrimination that falls within PPSM 12?So long as complaint was made in good faith, it sufficesDid the complainant suffer a threat, intimidation, reprisal or adverse action related to employment?Is there a causal connection between the two events?Did alleged retaliator know about the protected conduct?Was the employment action in progress before the complaint was made?-Watch for “pre emptive strikes”
28Avoid Catastrophe: Be consistent in asking basic questions of the complainant and the respondent Fair, objective investigation-Give both sides full opportunity to tell their story-What to do with recalcitrant party-What if respondent refuses to answer questions
29Basic questions for both Are there any documents, s, etc that you think I should review?Why are those items relevant to this claim (if relevance is not obvious)Are there any persons that you know of who have relevant information?Who are they and what information do you think they have?Have we discussed all of the key information relating to this claim/your response?Probe issues regarding motive to be untruthfulAsk respondent (if claim denied): do you know of any motive for complainant to lie about this?
30Opinion not backed by fact Credibility What do I do about….HearsayRumorOpinion not backed by factCredibilityIs there a motive to be untruthful?Is allegation inherently implausible?Demeanor and cooperationWatch for cultural issuesHearsay: A statement made out of court, offered for the truth of the matter assertedTranslation: what someone says someone else saidCultural: witness not looking investigator in the eye as exampleBut: cultural issues do not excuse violation of policyRumor: disregard unless rumors are part of the claim (example= case where P did not want to be questioned by female attorney)Credibility: very important in he said/she said cases. I
31Investigative Slips Sink Ships Example: Anonymous letter sent to employer alleges that a supervisor sexually harasses female employees. Investigator interviews female employees, but fails to evaluate credibility, differentiate between first-hand knowledge, hearsay, rumors, or mere gossip. Based on this report, employer fires supervisor.Result: $1,000,000 damages to supervisor for wrongful terminationKestenbaum v. Pennzoil Co.(1988) 108 N.M. 20Cotran v. Rollins Hudig Hall (17 Cal. 4th 93): so long as employer can prove that it had a good faith belief that employee violated rules, it will not be held liable for wrongful termination even if it turns out that conclusion re rule violation was wrong.
32Stay the Course: Document and Retain Thorough Records Investigator should take detailed notes and type them up shortly after completing an interviewShould interviewees be asked to sign summary statements?Many trainers recommend thisPros and cons-No one can take verbatim notes. Best practice is to summarize shortly after interview-Recording pros: clear record of what was said and how it was said-Recording cons: has a chilling effect; tapes aren’t always audible; expense associated with transcription
33Stay the Course: Document and Retain Thorough Records You must retain ALL investigative materialsDo not discard drafts or working notesKeep an organized fileDate your interview notesKeep a chronologyEvidentiary sanctions for willful destruction of investigative materialsAttorneys know what to look for and they will ask for it!Be familiar with UC retention policiesSee policy on investigating sexual harassment claims. Title IX officer responsible for maintaining records. Others (such as campus counsel) must keep theirs also.-Question for campus counsel as to when they think litigation hold letters should go out
34Investigator’s Report Introduction and overviewIdentify persons interviewed, dates of interviews, and documents reviewedNote anyone who refused to be interviewed or could not be interviewedState reason for not interviewing person identified as possible witnessUse a separate heading for each allegationAllegations should comport with claims in written complaint
35Don’t sink your ship Make findings of fact and state the reasons for them! Decision-make cannot make use of the report if there are conclusions but no explanations for the conclusionsIf there is litigation, you will be expected to be able to articulate reasons for conclusions
36Findings of Fact and Conclusions IncorrectMs. Jones harassed Mr. Green because of his sexual orientation.CorrectThe evidence shows that Ms. Jones consistently yelled at Mr. Green about his work performance in front of other employees. This conduct started after a discussion about Proposition 8 shortly before the November, 2008 election. During the discussion with co-workers and Ms. Jones, Mr. Green stated that he and his domestic partner would like to get married. The quality of Mr. Green’s work after this discussion was no different than the quality of his work before the discussion. Ms. Jones was unable to point to any objective reasons for criticizing his work. Ms. Smith heard Ms. Jones state to someone on the phone that “the gay marriage issue is ridiculous”. This evidence supports a finding that Ms. Jones treated Mr. Green in an adverse manner only after she learned he was gay and wanted to marry his partner.-Incorrect version is a conclusory statement-Correct version show the conclusion and the reason for it
37What do I do if I can’t tell who is telling the truth? In most cases, there will be some corroborating evidence or a credibility issue that will help you make a decisionIf you absolutely cannot tell, just state that:Both parties were credible in their statements and explanations for their actions. There is no evidence to support a conclusion that [complainant] had a motive to fabricate the claim, yet there is also no evidence other than his statement that the event occurred. There are no co-workers who observed inappropriate conduct on the part of [respondent] towards [complainant] or any other man in the office. [Respondent] denies having any romantic interest in [complainant].
38Avoid Catastrophe: make findings that relate to policy, not conclusions of law If the claim alleges violation of a UC policy, use the policy language as your guide.Do not use the FEHA, Title VII, Title IX, the ADA, the ADEA, etc as the basis for your conclusionsYou are investigating whether there has been a violation of University policy or rulesJudge or jury decides whether there has been a violation of law, if suit is filed-Did respondent engage in conduct that fits the definition set forth in the policy? Quote the policy and explain why or why not
39Why is this an improper statement in an investigation report? “Standards of Proof: Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race and color…. To find discrimination under Title VII on the basis of race, it must be shown that respondent took action in a discriminatory manner so as to eliminate African Americans from the department.”Why is this an improper statement in an investigation report?
40Why is this an improper statement in an investigation report? “While I did not find your conduct discriminatory based on race or gender, your behavior created an office environment that was hostile and unwelcoming, particularly for a person of color or a woman with small children.”Why is this an improper statement in an investigation report?
41Recommendations for Corrective Action Is corrective action required?If there is no finding that violation occurred, no corrective action is needed.If there is a finding, corrective action must be designed to prevent any future occurrences of similar conduct.Report will be submitted to University official with authority to take the corrective action.If report is incomplete, decision-maker should send it back.
42Action May Be Required Before Findings are Made Employers are obligated to take immediate and appropriate action when confronted with a complaint.Be alert for need to take preliminary actionPass on concerns to HR or Campus CounselBe careful about inadvertently penalizing either party-HR and campus counsel should be involved in decision to place someone on administrative leave
43Watch for storms clouds while investigation is pending Example: CDC Employee alleges severe sexual harassment by co-worker, including leering, touching, and threatened rape. CDC undertakes a fact-finding investigation, but makes no effort to protect her or stop harassment.“CDC cannot rest on its complex investigation process since the statute mandates remedial action designed to end the harassment CDC may not wait to act until it decides whether the complaint is valid.”Bradley v. Dept of Corrections (2008) 158 Cal.App.4th 1612-If you receive information from witnesses or parties during course of investigation that problems have arisen in the workplace because of it, alert the supervisor, who in turn should consult with HR and/or campus counsel
44Close the Investigation Tell complainant and respondent when investigation is completed.Complainant is entitled to know whether allegations were sustained.If allegations are sustained, complainant should be told that appropriate corrective action will be taken.Privacy considerations for respondent
45Smooth Sailing with Good Investigations Less risk of offending conduct in the future.Less risk of litigation.If litigation is filed, less risk of finding that UC failed to take appropriate action.