CONDUCTING BULLETPROOF INVESTIGATIONS

Transcription

1 CONDUCTING BULLETPROOF INVESTIGATIONS Presented by: Merrily S. Archer, Esq., M.S.W. Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas New Jersey New Orleans Orlando Philadelphia Portland San Diego San Francisco Tampa

2 Preparation, Preparation, Preparation Anticipate charges and/or lawsuits Keep relevant records Ensure that your employee handbook complies with all federal, state, and local laws Have a general strategy Communicate the warm fuzzies of caring and concern Have an open door policy

3 Open Door Policies To hear about (and resolve) complaints before the employee files a charge or hires an attorney To mitigate liability if litigation ensues To show that the employer is the good guy To capitalize on a jury bias

4 Why Investigate? Legal duty to investigate Harassment claims Negligent hiring and entrustment Good business practice Basis to make informed employment decisions Minimize liability

5 Types of Lawsuits Harassment/Hostile Environment Retaliation Whistleblower Employee Misconduct Discrimination

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7 Common Investigation Blunders Delayed Biased Cursory Too short or not thorough Inappropriate - threats and intimidation Widely broadcast

8 Effective Investigations Prompt Planned Thorough Unbiased Shared only on a need to know basis Well-documented

9 Investigation Tools Interviews Written Statements Questionnaires Searches Surveillance

10 Monitoring Monitoring of allowed when is provided by employer Nevertheless, employers should maintain written policies informing employees of monitoring, etc.

11 Investigation Planning Review employee files Collect and review documents Relevant policies Electronic communications Create list of persons with knowledge Determine information to collect Set time table Seek counsel

12 Investigation Planning (continued) Determine how you will document the investigation Employee-prepared statements Investigator-prepared statements Tape recording

13 Things to Consider... Should the accused employee be placed on leave during the investigation? Is there a private place on-site to interview witnesses? Would the complainant, accused employee, or any witness suffer reprisals from other managers or employees during the investigation?

14 Interview v. Interrogation Interview Purpose: fact-gathering Assumes subject will provide accurate information Interviewer listens more/talks less Open-ended questions Neutrality toward subject Non-coercive Beginning of investigation Interrogation Purpose: exact a confession Assumes subject has reason to withhold information or lie Interviewer talks much/then listens Reasonable suspicion of guilt Coercive End of investigation Requires extensive preparation Baiting questions

15 Tips for Interviewing the Complainant Conduct the interview in private Thank the employee for bringing the problem to your attention Remind employee of anti-retaliation protections Ask open-ended questions Who? What? Where? When? How? etc. Ask for corroborating witnesses, physical evidence, or notes

16 More Tips for Interviewing Complainant Ask how the discrimination/harassment has affected him/her Ask how the complainant would like to see the problem resolved, but do not commit to any action Ask the complainant to provide/sign a written statement

17 Tips for Interviewing/Interrogating the Accused Employee Conduct interview in private Explain purpose of interview Provide general description of allegations Ask for accused employee's response Ask why complainant and/or other employees would make allegations Baiting question: ask what will reveal, other employees will likely say Ask about corroborating witnesses Explain the investigation process Ask for a signed statement

18 Tips for Interviewing Third-Party Witnesses Conduct interview in private, one-on-one What did you see? What did you hear? When? Where? Who else was present? Follow up with open-ended questions Recognize hearsay Ask questions about context and/or motive

19 More Tips for Interviewing Third-Party Witnesses Admonish the witness not to discuss the allegations or interview with other employees Ask for a signed witness statement

20 Evaluating Credibility Plausibility Demeanor Motive What is NOT said can be more important Non-verbal cues Corroboration History

21 Summarizing the Investigation Date and nature of complaint Summary of allegations and rebuttal Detailed account of investigative steps Detailed summary of interviews or statements Who? When? What? Analysis of applicable policies, practices or documents Conclusions and rationale

22 Corrective Action Corrective action should: Be calculated to stop offensive behavior or conduct Not appear to punish the complainant Be consistent with discipline imposed for the same or similar violations of other employees Follow company policies or rules

23 Seek Legal Help When... You receive a demand letter or call from employee's attorney The employee refuses to cooperate in the investigation or makes unreasonable demands The investigation reveals that the problem is more pervasive than you imagined The accused employee threatens litigation

24 Investigative Action Plan General investigative guidelines for allegations of discrimination, harassment or retaliation complaints. Depending on the facts and circumstances, certain steps may be omitted or additional steps may be taken during the investigation. Interview Complainant - Obtain detailed, dated, signed account of the facts. - Ask Complainant to identify all facts

25 Investigative Action Plan Provide written communication to Complainant - acknowledge the complaint, confirming commitment to EEO policy, - advise that the investigation is underway, and - assure no retaliation.

26 Investigative Action Plan Gather documents relating to complaint Interview witnesses (including anyone alleged to have engaged in misconduct) - obtain witness statements - document witness interviews - use questionnaires 26

27 Investigative Action Plan Determine if additional witness interviews needed Document if review or further investigation needed - If so, complete and document those steps 27

28 Post-Investigation Review information obtained Reach conclusions based on the evidence Prepare written summary of conclusions 28

29 Post-Investigation Conclusions: NOT legal conclusions: - engaged in illegal harassment or discrimination, or - violated the law BUT Accurate, appropriate language - engaged in unprofessional conduct 29

30 Post-Investigation Consider consulting legal counsel at this stage, or earlier in the process - helps ensure the protection of the legal rights of employee and employer 30

31 Post-Investigation If information established misconduct determine appropriate action - to ensure no future misconduct, and - to discipline associate who engaged in misconduct e.g., warning, transfer, demotion, suspension, discharge, training, monitoring, probation 31

32 Post-Investigation If evidence did not establish misconduct: Determine whether further communication of expectations still is necessary to ensure professional and respectful conduct Prepare appropriate written documentation, including statement that retaliation is prohibited 32

33 Post-Investigation Document necessary follow-up steps training other communication steps taken to help prevent any future problems Maintain log of communications and actions throughout investigation Retain documents in separate file relating to investigation 33

34 Final Questions? Merrily S. Archer Fisher & Phillips LLP 1999 Broadway, Suite 3300 Denver, Colorado (303) Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas New Jersey New Orleans Orlando Philadelphia Portland San Diego San Francisco Tampa