Investigating Harassment Complaints: Best Practices* prepared for National Conference State Legislators

Transcription

1 Investigating Harassment Complaints: Best Practices* prepared for National Conference State Legislators presented by Jonathan A. Segal, Esq. *No statements made in this seminar or in the PowerPoint or other materials should be construed as legal advice or as pertaining to specific factual situations. Further, participation in this seminar or any question and answer (during or after the seminar) does not establish an attorney-client relationship between Duane Morris LLP and any participant (or his or her employer) Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris Firm Offices New York London Singapore Philadelphia Chicago Washington, D.C. San Francisco Silicon Valley San Diego Shanghai Boston Houston Los Angeles Hanoi Ho Chi Minh City Atlanta Baltimore Wilmington Miami Boca Raton Pittsburgh Newark Las Vegas Cherry Hill Lake Tahoe Myanmar Oman Duane Morris Affiliate Offices Mexico City Sri Lanka Duane Morris LLP A Delaware limited liability partnership DM2/

2 When to Investigate? 1. Employee brings complaint directly to HR 2. Manager/supervisor reports a complaint made to him or her by employee 3. Anonymous complaint capable of investigation 4. Constructive discharge allegations (case-bycase) 5. Complaint upon involuntary termination (caseby-case) 1

3 When to Investigate? 6. Personal observation 7. Complaint by person of confidence, such as co-employee Note: examples only 2

4 Planning the Investigations Among issues to consider: 1. Who should investigate? 2. What is/are the issue(s) to be investigated? 3. Who should be informed of the investigation? 4. Who should be interviewed? 5. What documents or other things (such as video, s and instant messaging) will need to be secured? 3

5 Planning the Investigations Among issues to consider: 6. Are interim actions necessary? 8 To whom are recommendations made? 9. Who makes the final decision? 10. Etc. 4

6 Interim Actions 1. Taking interim action may be necessary a. Circumstances may include, for example: i. Seriousness of the allegations ii. Relationship between accused and the complainant and the nature of the allegation iii. Emotionally charged nature of situation 5

7 Interim Actions 2. Examples of possible interim actions may include, for example: a. Leave (paid or unpaid) b. Reassignment 6

8 Interim Actions 3. Keep in mind need to guard against: a. Retaliation against complainant b. Defamation against accused 7

9 Where to Investigate? 1. Confidential setting 2. Consider off site in some circumstances 8

10 When a Particular Individual Should Avoid Investigating 1. Personal relationship with either party 2. Necessary witness to any of the material events 3. Affected by outcome 4. Don t think you can be objective 5. Party raises credible concern about objectivity (they raise; you do not ask) 6. Above are examples only 9

11 General Guidelines 1. Role a. Representative of management b. Not advocate for any individual c. Be empathetic but neutral in your questions and reactions d. Take every complaint seriously e. Demonstrate actual and apparent objectivity 10

12 General Guidelines 2. Avoid legal or conclusory labels, such as a. Harassment b. Harasser c. Victim 11

13 General Guidelines 3. Importance of timeliness a. Examples i. Commencement of Investigation ii. Completion of Investigation b. Keep in mind i. Move as promptly as possible ii. But don t set deadlines cannot meet 12

14 General Guidelines 4. Questions a. Easy, background questions first b. Approach to questions i. Start out open ended ii. Become progressively more targeted c. Preferred manner of questions i. Behaviorial ii. Non-leading 13

15 General Guidelines 5. How a. Ideally, in person b. If not possible, video conference or skype c. Telephone only if neither of above available d. Consider (a) through (c) as interim step before you can meet with person face to face, as appropriate 14

16 3 Key Issues to Raise In All Interviews 1. Honesty: a. Accurate b. Complete 15

17 3 Key Issues to Raise In All Interviews 2. Confidentiality: a. Assurance i. Cannot promise absolute confidentiality ii. Make clear will disclose on need to know basis only b. Require i. Limitations on mandating confidentiality ii. Various ways to address 16

18 3 Key Issues for All Interviews 3. Non-retaliation a. 2 issues i. Protection from ii. Prohibition against b. Legal Issues i. Broad definition of who is protected ii. Broad definition of what may be retaliation 17

19 Preparing for Each Interview 1. Prepare list of preliminary questions, but don t get lost in script--dialogue 18

20 Preparing for Each Interview 2. Will you use team? a. Potential benefits i. One person asks questions and other takes notes ii. Split up witnesses (where many) iii. Opportunity to discuss facts and perceptions b. Team approach will not always be necessary or feasible 19

21 General Guidelines on Note Taking 1. Write down a. Be clear on what was said versus personal observations b. Direct quotes, if possible, making clear same c. Date and time 2. Keep in mind notes discoverable a. Make sure neat and organized b. Do not include anything superfluous 20

22 Order of Investigation 1. Complainant, generally, first 2. Decision point as to who is next: a. Accused b. Witnesses 21

23 Example of Core Questions for Complainant 1. Allegations of harassment: a. Who? b. What? c. How? d. When? e. Where? f. Your response? g. Witnesses? 22

24 Examples of Core Questions for Complainant 2. Allegation of Unlawful adverse action: a. What decision? b. Who made decision? c. Why does employee believe decision was unlawfully motivated? i. What was said? ii. What was done? 23

25 Key Issues To Close With Complainant 1. Anything else? (Invite back if subsequent recollection) 2. Prior complaints to person with authority? (Define persons with authority) 3. Other employees with whom discussed concerns? 4. Supporting documentation? 5. Relief seeking (goal/objective)? 24

26 Accused 1. Ordinarily, do not state purpose of meeting until the meeting itself 2. Start general and become more specific 3. Listen carefully for distinction between: a. Don t recall whether it occurred b. Recalled that it did not occur 25

27 Accused 4. Disclose identity of complainant a. General rule yes b. Possible exceptions may include, but are not limited to: i. Public event ii. Clear pattern (of private events) iii. Significant retaliation concerns 26

28 Witnesses 1. General guidelines: a. Disclose only what witness needs to know b. Non-retaliation i. Prohibition ii. Protection 27

29 Witnesses 2. Interviews a. Focus on specific facts b. Listen carefully for distinction between: i. Don t recall whether it occurred ii. Recall that it did not occur 28

30 Witnesses 3. If don t interview potential witness a. Articulate and document reason b. Potential reasons include: i. Irrelevant ii. Redundant 29

31 Decision Making 1. Specific findings of each factual allegation as opposed to general conclusion 2. Findings of fact, and not conclusions of law, wherever possible 3. May need to make credibility determination (if yes, document reasons for same) 30

32 Factors to Consider in Making Credibility Decisions 1. Examples a. Consistency b. Body language observations c. Timing d. Corroboration e. Nature of denial f. Plausibility g. Motivation h. History 31

33 Factors to Consider in Making Credibility Decisions 2. Avoid, for example: a. Not that kind of person b. No one would do something that bad c. No witness 32

34 Corrective Action (If Applicable) 1. Potential corrective actions: a. Reverse decision (and make individual whole) b. Written reprimand/discipline c. Mandatory training/behavioral counseling d. Financial penalty (FLSA considerations) e. Suspension (FLSA considerations) f. Work or other restrictions 33

35 Corrective Action (If Applicable) 1. Potential corrective actions: (continued) g. Demotion with reduction in pay h. Oversight of material employment decisions by HR i. Termination of employment j. Termination of other relationship 34

36 Corrective Action (If Applicable) 2. Factors to consider include, but are not limited to: a. Severity b. Pervasiveness c. Prior warnings d. Position e. Handling of prior situations f. Response to conclusion (in some cases) 35

37 Retaliation 1. Prevent and correct unlawful retaliation against a. Complainant b. Witnesses c. Others who participate in investigatory process d. Others who are associated with complainant (e.g., spouse or child) 36

38 Retaliation 2. Prohibited retaliation a. Tangible employment actions b. Other material terms and conditions of employmenti. Assignment ii. Reassignment (always check with in house counsel) c. Adverse actions independent of the workforce 37

39 Retaliation 3. HR should: a. Raise non-retaliation with complainant and accused when investigation concludes b. Document in advance dates for follow-up meetings with both c. Arrange for oversight by HR of material employment decisions made by accused with regard to complainant, as appropriate 38

40 Retaliation 3. HR should: (continued) d. Document what parties say in follow-up meetings e. Commence investigation immediately if any allegation of retaliation (or discrimination or harassment) 39

41 Documentation 1. Initial contact with complainant 40

42 Documentation 2. Notes of interviews 41

43 Documentation 3. Summaries of interviews with complainant, accused and witnesses. Options (depending on circumstances): a. File memo b. Written statement prepared by person c. Memo from investigator to person give him/her opportunity to add, modify or delete 42

44 Documentation 4. Summary of investigatory findings and reasons for findings 43

45 Closing Thoughts 1. Few rules that apply to every investigation 2. Use your best judgment based on the specific facts 3. Consult with senior HR professional or General Counsel if you need guidance 44

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