Jessica T. Walberg, Esquire 407-418-2300 jwalberg@fordharrison.com Solving the Mystery Behind Conducting a “Flawless” Workplace Investigation - An HR Attorney’s Perspective Jessica T. Walberg, Esquire 407-418-2300 jwalberg@fordharrison.com

Search for the “Flawless” Investigation What constitutes a complaint? Do I have a duty to investigate? Who should conduct the investigation? How should the investigation be done? Should an investigative report be prepared? Are there common mistakes to avoid? How much coffee have you had? Will you answer all of my questions & not bill me?

What Constitutes a Complaint?

What Constitutes a Complaint? Written or verbal communication from employee “specifically” complaining of discrimination, harassment or other objectionable conduct Employee verbally states he/she has “generally” been treated badly or unfairly Supervisor/manager reports that inappropriate acts or misconduct have occurred Complaints submitted through published policy EEOC / FCHR Charge of Discrimination / Lawsuit

What Constitutes a Complaint? Subtle statements about workplace or supervisor Offhand comment from employee directly to or overheard by supervisor about inappropriate conduct that has occurred in workplace Comments made outside of workplace between “friends” (“just between us”, “off the record”)

Duty to Investigate

Duty to Investigate Federal & state harassment/discrimination/safety laws impose legal duty on employer to investigate employee-related complaints (defenses & mitigation) Can include off-duty conduct “For Cause” terminations (in employment contracts or CBAs) require fair & thorough investigations Obligations to shareholders may impose duty to investigate claims to determine or limit potential liability “Right Thing To Do” - provide safe work environment (“happy employees are productive employees, productive employees are profitable employees!”)

Selecting the Investigator

Selecting the Investigator Ability to understand business purpose of investigation & potential issues it may raise Knowledge of policies & practices Knowledge of applicable legal issues Ability to take thorough, accurate notes which can be used as evidence “Communication fit” with personalities & backgrounds of potential witnesses Comfort level for witnesses (consider if race, age, etc. will make a difference for potential witnesses)

Selecting the Investigator Interviewing skills, including the ability to identify follow-up questions when new facts or issues arise during interviews Ability to determine when & when not to maintain confidentiality Ability to determine credibility of witnesses Experienced conducting investigations Consider cost

Selecting the Investigator Manager or supervisor HR professional (“perfect witness”) Private investigator or outside consultant In-house counsel Outside counsel For sexual harassment cases, never use line management At the beginning of an investigation, identify witnesses that, based on your knowledge at the time, may have relevant information (i.e., complainant, accused, those on duty, etc.) During the interview, always ask who else might have useful information AT the end of the investigation, go back and see who you missed Use an attorney to protect confidential communications between client and attorney. Note that the privilege applies to the company, not to individual employees. Attorney is gathering information to give legal advise to the company.

Conducting the Investigation

Conducting the Investigation - Strategy Determine if Interim Actions Should be Taken Temporary transfers of shift or reporting changes Place accused on leave Changes for the complainant should be voluntary Remind everyone that retaliation is prohibited

Conducting the Investigation - Strategy Start investigation promptly Ellerth and Faragher defenses – prompt, remedial action Outline scope & breadth of investigation Prepare a timeline, include each step that will be taken & expected completion date Recognize that chronology & order of interviews can either contaminate or enhance success of investigation

Conducting the Investigation - Strategy Prepare an outline of critical issues: Ensures all issues regarding each witness will be addressed Ensures a thorough & consistent line of questioning Allows investigator to compare similarly situated witnesses from a standardized approach

Conducting the Investigation - Documents Rules, policies, & procedures Personnel files (named individuals & “comparators”) Memoranda or notes about incident Complaints (internal or external) Videotape (security) E-mail, Internet, Blogs, Facebook, etc. Other potential information sources Some critical policies your company handbook should include: -Sexual harassment policy/complaint procedure/open door policy (confidential?) -drug free workplace policy -absenteeism policy – is attendance an essential function of the job? -privacy/co-equipment/search policy – is the company unionized?

Conducting the Investigation - Interviews Order of Interviews In typical harassment situation Complainant Harasser Witnesses In discipline cases for workplace violations Employee who violated the workplace rule or policy Some critical policies your company handbook should include: -Sexual harassment policy/complaint procedure/open door policy (confidential?) -drug free workplace policy -absenteeism policy – is attendance an essential function of the job? -privacy/co-equipment/search policy – is the company unionized?

Conducting the Investigation - Interviews Location is Important Cubicles and open offices are not sufficient Quiet, private room is appropriate Ground Rules Company meeting Expect/require honesty, candor Lying or failure to cooperate equals independent grounds for discipline

Conducting the Investigation - Interviews Ground Rules Cont’d OK for union to participate to ask questions or clarify – but expect employee to answer Will break at end and give union and employee time to speak privately – come back and add anything at that time Make appropriate disclosures (e.g., who you are, who you represent, why you are there, etc.)

Conducting the Investigation - Interviews Disclose nature & purpose of investigation at beginning Be candid when interviewing person who is focus of investigation Explain to witness that company takes complaints seriously Do not promise confidentiality!

Conducting the Investigation - Interviews Stress voluntary nature of participation Make clear employee may terminate discussion at any time No retaliation Advise that no judgments have been made about any aspect of investigation, including validity of complaint Just the Facts! Discuss opposition and participation clause of Title VII discussed in Crawford v. Metropolitan Government of Nashville & Davidson Co.

Conducting the Investigation - Interviews Begin with open-ended questions (“Funnel Approach”) Transition to specific situation at issue Give witness opportunity to provide additional information Probe witness with follow-up questions, & ask about knowledge of any relationships between complainant & alleged wrong-doer or possible motivations for complaint or conduct at issue

Conducting the Investigation - Interviews Inquire if witness is hostile/friendly to either complainant or alleged wrong-doer Ask witness if he/she is aware of any others who might have relevant information or evidence (witnesses) Ask witnesses for additional information & evidence (photos, e-mails, calendar entries, & other evidence)

Conducting the Investigation - Interviews Be an active listener & critical thinker “Does this make sense?” “Do I understand exactly what happened?” “Will the person reading my report understand exactly what happened?” Use your time line to identify discrepancies between witness’ own story & that of others - challenge facts

Conducting the Investigation - Interviews Clarify basis for witness’ knowledge of a “fact” How do they know? Saw it? Heard it? Was involved in it? Distinguish between “no” & “I cannot recall.” Document carefully for later review - generally don’t tape record interviews (witnesses are less forthcoming)

Conducting the Investigation - Interviews Prepare formal witness statements or take notes, as close to verbatim as possible, of facts recounted to investigation & provide witness with written statement of his/her interview to verify accuracy & make any necessary changes Witness should sign & date statement If this is not possible or practical, confirm accuracy of notes & obtain initials

Conducting the Investigation - Interviews Specific to Harassment Complaints Was conduct welcomed? Does alleged action have purpose or effect of creating a hostile, offensive or intimidating environment? Is it sufficiently “severe or pervasive” to alter conditions of alleged victim’s employment?

Conducting the Investigation - Interviews Specific to Harassment Complaints How often did alleged action occur? How severe was alleged action? Was alleged action physically threatening or humiliating? Describe in detail (don’t accept “dirty talk” or “inappropriate language or conduct”) Does alleged action unreasonably interfere with victim’s work performance? Reasonable person standard (a jury of your employee’s peers)

Conducting the Investigation - Interviews (Credibility) Demeanor - Body language How did witness react to allegations? Did witness appear credible overall? Logic/consistency How much detail did witness offer? Did events differ from others interviewed? Did witness’ version make sense? Is there corroborating evidence? Did witness maintain eye contact? Arms crossed? Look at floor? Detail or vague responses Inconsistent version with others Corroborating evidence

Conducting the Investigation - Interviews (Recording/Transcribing Interviews) Witness may be uncomfortable & less forthcoming Florida law requires informed consent of witness Once recorder is on, state date, time & place of interview, name of participants and have witness confirm on tape his/her knowledge of & consent of the recording Repeat & re-verify consent at conclusion of interview

Conducting the Investigation - Interview Problems Remind them of obligation to cooperate Assure them of obligations of confidentiality/non-retaliation Confirm that company can take action based only on information it is able to obtain during investigation Interviewer’s notes should confirm refusal to cooperate & that disclosures were made to confirm consequences of refusal to cooperate

Conducting the Investigation - Concluding Interviews Conclude interview Repeat significant points & ask interviewee to confirm information is complete & accurate Give witnesses opportunity to disclose anything else he/she thinks might be important Cover expectations of confidentiality Invite witness to contact you if he/she recalls or discovers any additional helpful information after interview concludes Explain who should be contacted if employee receives threats or reprimands for participating in investigation Ask the complainant what (s)he wants to happen?

Preparing the Investigative Report

Preparing the Investigative Report Review and finalize notes immediately upon completion of investigation – while its fresh Write as though every word will be second-guessed (opposing counsel, judge, &jury) Prepare summary of facts Include facts, not speculation or hearsay Where there are discrepancies, give all versions Take appropriate action to address conclusions Factual findings (possibly recommendations)

Preparing the Investigative Report Reach a conclusion Who do you believe & why Examine objective facts and assess credibility of interviewees There was a violation There was not a violation You cannot make a determination

Preparing the Investigative Report Include background of complaint Summarize witnesses’ statements: evaluate their credibility (based on facts) Make factual findings (vs. legal conclusions) Mark “confidential” - maintain privileges Recommend appropriate action, if charged with doing so Direct to Counsel/Senior Management Prepare final report in anticipation of discovery Do not say “Larry unlawfully sexually harassed Lolita!” Say, “I find that Larry violated the company’s sexual harassment policy/zero tolerance” rather than provide a legal conclusion Investigative report will be discoverable unless Atty/Client privileged; don’t force your lawyer to deal with ‘admissions against interest’ in litigation If unable to determine what happened, re-emphasize policy, give warning, f/up with complainant

Preparing the Investigative Report Were policies, guidelines, practices violated? If so, was violation serious or minor? What has been done in the past with regard to similar violations (consistency)? Are there mitigating or aggravating circumstances? Creative alternatives? What have you done with white males in the past who have violated this same policy? (i.e. drugs) Law requires you to take whatever action is necessary to stop the harassment Ins ex harassment cases, sometimes an apology, additional training and review of employee handbook, etc.

Preparing the Investigative Report – There was a Violation…. What is appropriate discipline? Disciplinary counseling Transfer Suspension Last Chance Agreement Demotion Discharge What have you done with white males in the past who have violated this same policy? (i.e. drugs) Law requires you to take whatever action is necessary to stop the harassment Ins ex harassment cases, sometimes an apology, additional training and review of employee handbook, etc.

Preparing the Investigative Report – There was Not a Violation… Make sure the complainant will not be retaliated against for raising a concern Make sure that the alleged wrongdoer is not treated differently as a result of the investigation What have you done with white males in the past who have violated this same policy? (i.e. drugs) Law requires you to take whatever action is necessary to stop the harassment Ins ex harassment cases, sometimes an apology, additional training and review of employee handbook, etc.

Preparing the Investigative Report – The Results are Inconclusive Continue to monitor the situation Consider possible reassignment Consider implementing additional workplace training on the issue Maintain investigation file Let parties know of results No retaliation What have you done with white males in the past who have violated this same policy? (i.e. drugs) Law requires you to take whatever action is necessary to stop the harassment Ins ex harassment cases, sometimes an apology, additional training and review of employee handbook, etc.

Preparing the Investigative Report – Possible Conclusions of Report There is no evidence to corroborate the complaint There is no evidence to establish a violation of Company policy The evidence corroborates the complaint, but does not establish a violation of law or Company policy The evidence shows a violation of law and/or Company policy What have you done with white males in the past who have violated this same policy? (i.e. drugs) Law requires you to take whatever action is necessary to stop the harassment Ins ex harassment cases, sometimes an apology, additional training and review of employee handbook, etc.

Determining Appropriate Discipline Was a rule or policy clearly broken? Was the employee on fair notice of rule and consequences? Has the employee been provided with a fair chance to explain? What has Company done in past – consistency, consistency, consistency. Is “progressive discipline” short of discharge appropriate? What have you done with white males in the past who have violated this same policy? (i.e. drugs) Law requires you to take whatever action is necessary to stop the harassment Ins ex harassment cases, sometimes an apology, additional training and review of employee handbook, etc.

Determining Appropriate Discipline To what extent does the employee’s record warrant mitigation? Is there consensus about the level of discipline? 18 months down the road will you be able to look at a judge or arbitrator and say this was fair, appropriate discipline? What have you done with white males in the past who have violated this same policy? (i.e. drugs) Law requires you to take whatever action is necessary to stop the harassment Ins ex harassment cases, sometimes an apology, additional training and review of employee handbook, etc.

Preparing the Investigative Report – Communicating the Outcome Follow up with both complainant and accused Emphasize company’s commitment to policies and compliance with the law Typically not appropriate to inform other employees about the results of the investigation What have you done with white males in the past who have violated this same policy? (i.e. drugs) Law requires you to take whatever action is necessary to stop the harassment Ins ex harassment cases, sometimes an apology, additional training and review of employee handbook, etc.

Post-Investigation Measures Take steps to ensure that no retaliation is taken Encourage complaining employee to bring all issues forward in future Continue monitoring situation – 30, 60, 90 day follow up Train managers/employees as needed

Common Investigation Mistakes to Avoid

Common Mistakes to Avoid While Conducting a Workplace Investigation Taking sides Investigator must remain neutral & conduct unbiased, objective investigation Applies equally whether empathizing with complaining employee or defending conduct of alleged wrong-doer

Common Mistakes to Avoid While Conducting a Workplace Investigation Promising confidentiality Breach of contract Must be sure to explain confidentiality is qualified/limited Treat as sensitive information - share only with legitimate need-to-know

Common Mistakes to Avoid While Conducting a Workplace Investigation Failing to Document “Minor” complaints often not documented Relevant documents must be properly dated & signed Sanitize notes & report before finalizing Be the “proud author!” Keep records for three years – will not run afoul of any laws as typically retention requirement is 3 years or shorter

Common Mistakes to Avoid While Conducting a Workplace Investigation Failure to Actually Investigate Do not simply ask witnesses to provide you with a written account of what happened Important to have interactive interviews to assess credibility & immediately follow-up on issues raised Prevents employees from improperly inserting their own subjective opinions & potentially biased beliefs into process

Common Mistakes to Avoid While Conducting a Workplace Investigation Failure to Make Conclusions “He said - she said” type case, easy to simply state that no conclusion can be reached Important to reach a conclusion based on best information available, credibility of witnesses, a determination of who is more likely to be telling the truth, etc. Okay to determine “inappropriate conduct” without concluding “unlawful harassment” occurred

Search for the “Flawless” Investigation What constitutes a complaint? Do I have a duty to investigate? Who should conduct the investigation? How should the investigation be done? Should an investigative report be prepared? Are there common mistakes to avoid? How much coffee have you had? Will you answer all of my questions & not bill me?

Jessica T. Walberg, Esquire 407-418-2300 jwalberg@fordharrison.com Solving the Mystery Behind Conducting a "Flawless" Workplace Investigation - An HR Attorney’s Perspective Jessica T. Walberg, Esquire 407-418-2300 jwalberg@fordharrison.com