1. Conducting Internal Investigations: Process and Ethical Challenges
Stephanie L. Russ
Greg Dimmick

2. Conducting Internal Investigations: Process and Ethical Challenges
How to conduct an internal investigation
How to respond to an EEOC charge
Attorney-client privilege issues when in-house counsel is involved

3. How to Conduct an Internal Investigation
An employee, Tomas, calls and says that his manager, Mario, is harassing him. You should:
Tell Tomas to report the matter to his supervisor
Tell Tomas to “toughen up” and live with it
Tell Tomas that you appreciate his call and that the company will be investigating the matter immediately

4. Internal Investigation Steps
Pre-investigation follow-up and analysis
Meet with the complainant; determine if an investigation is needed
Plan the investigation
Conduct the investigation (document appropriately); assess credibility
Make a recommendation regarding next steps

5. Step 1: Pre-investigation
Contact complainant immediately and let him know the company will investigate
Determine the subject matter of the issue: discrimination, harassment, illegal activity, etc.
Review company’s policies regarding the issue
Review files relating to the persons involved in the complaint

6. Step 2: Meet with Complainant
When conducting the meeting with Tomas, you decide to:
Put him in a small, hot room with no windows; you want to “make him sweat”
Bring two others with you and create an interrogation panel
Make him as comfortable as possible and ask open-ended questions

7. Step 2: Meet with Complainant
Make employee as comfortable as possible; schedule plenty of uninterrupted time
Express appreciation for coming forward; repeat company’s policy against the behavior
Reassure that no retaliation will occur; stress that any suspicion of retaliation must be reported immediately
Discuss confidentiality requirements of employee and employer
Ask who, what, when, where, why questions
Have complainant sign his statement of events

8. Step 2: Determine if Investigation is Needed
Will a single act or answer resolve the complaint
Are other employees involved
Do you need more facts

9. Step 3: Plan the Investigation
After meeting with Tomas, you do not believe his side of the story, but you went to some seminar, and an attorney told you that you should investigate, so you:
Curse the day the attorney was born
Curse the day Tomas was born
Curse the day you were put in charge of this investigation
All of the above

10. Step 3: Plan the Investigation
Review internal policies, files, and documents
Notify accused of the incident; schedule this interview first before interviewing potential witnesses; use same technique as for complainant
Decide others who should be interviewed: observers, others with relevant information, persons the accused and the accuser have asked to be interviewed, immediate supervisor
Determine if interim actions are necessary

11. Step 4: Conduct the Investigation
You let your immediate supervisor know of the incident and what your preliminary results show, your boss says, “I just want this to go away, and I want it to go away fast,” you:
Say okay, and immediately fire the accused
Say okay, and decide to conduct as few interviews as possible;
Explain why a thorough investigation is the company’s best hope of making this “go away,” even though it may not be as fast as the boss would like

12. Step 4: Conduct the Investigation
Prepare, prepare, prepare
Explain why you are investigating, but do not “pick a side”; explain why the person being interviewed is being interviewed
Emphasize confidentiality and no-retaliation policy
Draft preliminary questions

13. Step 4: Conduct the Investigation
Start with broad who, what, when, where, why, how questions
Do not put words in interviewee’s mouth
Ask tough questions, but save unfriendly or embarrassing questions until the end of the interview
Let interviewee’s answers guide you to questions you may not have planned to ask

14. Step 5: Assess Information and Make Recommendation
The first interview was that of the accused, and it lasted 2 hours. You are exhausted.
You put the file away to work on later
You decide to assess each file after all interviews have been done
You assess Mario’s interview and complete his file while your impressions and the information is fresh in your mind

15. Step 5: Assess Information and Make Recommendation
Make notes as soon as interviewee leaves
Review interviewee’s chronology of events
Note demeanor; non-verbals
What were the admissions and denials
Were conflicting statements made
Were explanations plausible

16. Step 5: Assess Information and Make Recommendation
Were policies violated
Were the violations serious or minor
Do any laws require you to take action
What factors mitigate against discipline; or at least delaying discipline

17. Documenting Interviews and Assessments
If your company has documentation guidelines, make sure that you have followed them
Get signed statement from complainant at the beginning
If written statements are obtained (complainant or witnesses), they are discoverable
Investigator notes are discoverable if not taken by an attorney; notes should be on paper that contains no other non-investigation information

18. Documenting Interviews and Assessments
Discuss your findings and conclusions with only those need-to-know persons
Make sure that accused and accuser’s investigation files are properly documented but kept confidential; files should be labeled “Need-to-Know, Confidential”

19. How to Respond to an EEOC Charge
Because you were not in charge of the investigation at the time, Tomas’ complaint was not sufficiently investigated. Tomas was fired, and he filed a Charge with the EEOC.
You receive a copy of the written Charge and the Request for Information (RFI) in the mail and prepare the following Response:

20. How to Respond to an EEOC Charge
Dear EEOC,
We are fine. How are you? We are not guilty. Thank you.
Love,
Employer

21. EEOC Charge: Rules to Live By
Cooperate, cooperate, cooperate
Never speak negatively about the Charging Party (CP)
Make EEOC investigator’s life as easy as possible
Do not ignore deadlines; keep lines of communication open

22. EEOC Response: Assess
Review Charge, RFI, and CP’s actual statement carefully
Immediately review internal investigation files, if any; if no files, conduct preliminary investigation
Ask the EEOC for an extension; state that you are thoroughly investigating and fully intend to comply; conduct full, internal investigation

23. EEOC Response: Assess
After assessing the situation, you determine that the facts are not good for the company. You should:
Ignore the Charge and hope it just “goes away”
Submit to the EEOC a full Response to the Charge
Request mediation with the EEOC

24. EEOC Response: Mediation
Mediation allows for a written position statement, but neither a full Response nor a detailed position statement to the RFI is required – this is critical
Refer to EEOC Rules to Live By; determine the mediator’s preferences for position statement format
Keep communications open; do not ignore deadlines
Is the mediator truly neutral

25. EEOC Response
Tomas refuses to enter into mediation, and you are notified that the company must move forward with providing a complete Response. You should:
Say okay, and just move forward
Tell the EEOC, “Just sue us,” and slam down the phone
Review the Charge and RFI; determine if the RFI is extensive, and ask that it be modified, if applicable; but plan to move forward with your Response

26. EEOC Response: Position Statement
Response will include company’s Position Statement and response to EEOC’s RFI
Position Statement: Employer’s written explanations of the non-discriminatory reasons for the actions taken with the CP; should include denials (if true) and legal defenses
RFI: Answers to specific information requested by EEOC
Provide information in a “pretty,” user-friendly format

27. EEOC Response: RFI Provide answers to RFI first
Typically the EEOC asks factual information about the number of employees; persons with knowledge; contact information, etc.
Provide a short summary that explains the nature of your business

28. EEOC Response: Position Statement
Provide a brief summary of the company’s position
For each allegation/statement, admit or deny the allegation. Start each sentence with “The company specifically denies…”, if a denial is appropriate

29. EEOC Response: Position Statement
Tell the company’s non-discriminatory story and provide supporting evidence
Pertinent language from the company’s policies relating to the Charge and a copy of the signed receipt page of the handbook, if available
Witness statements; affidavits
Historical documents: performance appraisals, disciplinary write-ups, communications

30. EEOC Response: RFI Provide legal defenses, including case law
Knowing that a CP’s actions can actually be a defense for the employer is critical
Discuss statutory requirements that may be helpful to the company’s defense
Provide summary conclusion; repeat denial of Charge

31. Attorney-client Privilege
Duty to investigate while simultaneously protecting the company’s interests
Protecting attorney-client privilege
Mitigating discoverable information

32. Thank You Stephanie Russ Greg Dimmick 972-852-1710 972-852-1708