1. 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

2. 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?

3. What Constitutes a Complaint?

4. 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

5. 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”)

6. Duty to Investigate

7. 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!”)

8. Selecting the Investigator

9. 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)

10. 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

11. 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.

12. Conducting the Investigation

13. 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

14. 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

15. 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

16. Conducting the Investigation - Documents
Rules, policies, & procedures
Personnel files (named individuals & “comparators”)
Memoranda or notes about incident
Complaints (internal or external)
Videotape (security)
, 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?

17. 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?

18. 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

19. 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.)

20. 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!

21. 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.

22. 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

23. 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, s, calendar entries, & other evidence)

24. 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

25. 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)

26. 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

27. 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?

28. 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)

29. 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

30. 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

31. 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

32. 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?

33. Preparing the Investigative Report

34. 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)

35. 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

36. 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

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.

44. 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.

45. 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

46. Common Investigation Mistakes to Avoid

47. 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

48. 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

49. 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

50. 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

51. 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

52. 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?

53. 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