I. Introduction. Total Number of Charges Filed. Conducting Internal Investigations in a Rapidly Changing Employment Law World

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1 Total Number of Charges Filed Conducting Internal Investigations in a Rapidly Changing Employment Law World Presented by: Fred J. Bissinger I. Introduction 2 Total Number of Charges Filed 100,000 90,000 80,000 70,

2 II. What is the Purpose of the What Are You Trying to Accomplish? 4 II. What is the Purpose of the The Primary Purpose of the Investigation is to Determine the Merits (or lack thereof) of the Complaint in Question 5 II. What is the Purpose of the Does Investigation Reveal: 1) A Breakdown in the Implementation of the Company s Core Values; 2) A Failure of Leadership; 6 2

3 II. What is the Purpose of the Does Investigation Reveal: 3) A Cultural or Systemic Issue; 4) A Failure to Effectively Communicate the Company s Expectations; 7 II. What is the Purpose of the Does Investigation Reveal: 5) A Lack of Understanding of the Company s Expectations; and/or 6) A Class of Affected Employees 8 II. What is the Purpose of the The Mission Creep Scenario 9 3

4 II. What is the Purpose of the The Takeaway Point is that at the Outset of an Investigation, an Employer should Define the Purpose of the Investigation, and as the Investigation Proceeds, the Employer should Monitor the Investigation s Scope and Adjust as Appropriate 10 III. Is the Investigation Subject to the Attorney-Client Privilege? Intended to be Used as Part of Defense? or, in Preparation for Litigation? 11 IV. Has an Effective Litigation Hold been put in Place in a Timely Manner? Upon Receipt of a Complaint of Harassment, Discrimination, and/or Retaliation, an Employer must Ensure that all Potentially Relevant Information (in whatever format) is Maintained in its Original Format, and no such Information should be Altered, Amended, or Destroyed 12 4

5 V. Separate the Fact-Finding and Decision-Making Functions Decision-Maker: Determine the Purpose and Scope of the Investigation Quarterback the Investigation Process through Conclusion of the Fact-Finding Process Determine what Remedial Measures are Appropriate 13 V. Separate the Fact-Finding and Decision-Making Functions Fact-Finder: Responsibility to Gather Relevant Documentary Information (including that in electronic format) Conduct Witness Interviews, Determine Witness Credibility, Make Findings of Fact, and sometimes, Make Recommendations on Remedial measures 14 V. Separate the Fact-Finding and Decision-Making Functions The Primary Benefit of Segregating these Functions is that it Helps Ensure the Accuracy and Effectiveness of the Investigation Cat s Paw Theory of Liability 15 5

6 VI. Appropriately Documenting the Investigation Process is Essential At a Minimum, an Employer s Internal Investigation should Include: 1) Written Summary of Underlying Complaint (preferably signed and dated by the complaining employee) 16 VI. Appropriately Documenting the Investigation Process is Essential At a Minimum, an Employer s Internal Investigation should Include: 2) Tasking Memo in which the Decision- Maker Assigns the Investigation to the Fact-Finder, and Defines the Purpose and Scope of the Investigation 17 VI. Appropriately Documenting the Investigation Process is Essential At a Minimum, an Employer s Internal Investigation should Include: 3) Summary of all Witness Interviews (signed and dated by interviewees if possible) 4) Outline of all Documentary Information Obtained in Interview Process 18 6

7 VI. Appropriately Documenting the Investigation Process is Essential At a Minimum, an Employer s Internal Investigation should Include: 5) Summary of Investigator s Results, including Comments on Credibility 6) Summary of Decision-Maker s Decision, and Nature and Timing of any Remedial Action Taken 19 VII. Take Prompt and Effective Remedial Action Must be Prompt and Effective (employer has discretion) Punishment must Fit the Crime Certain Situations (e.g. Workplace Violence) Immediately Terminating Employee is Almost Always Appropriate and Justifiable 20 VII. Take Prompt and Effective Remedial Action Other Situations, the Decision to Terminate or take Less Severe Action Depends upon Specific Facts and Circumstances of Each Scenario Remedial Action must be Appropriately Sufficient to End of Complained Behavior Degree of Consistency Important, but not Legally Required to Impose Same Remedial Action, must Look at Factors 21 7

8 VIII. Effective Communication is Essential Designated Investigator Needs to Have Appropriate Communication Skills Example: Complaint of Sexual Harassment Submitted by Young Female, the Employer should Designate an Investigator Who Will be Able to Effectively Communicate with that Employee probably a Female Investigator 22 VIII. Effective Communication is Essential Same Example: If Alleged Harasser is an Intimidating and/or Belligerent Male may be Appropriate to Have Strong Male Management-Level Employee Participate in Interview, so Alleged Harasser is not able to Bully the Investigator Team Approach to Writing and Finalizing the Written Record 23 IX. Common Sense is Highly Underrated 24 8

9 X. Miscellaneous Issues 1) Utilizing a Paid or Unpaid Leave of Absence 2) Always Assume that Interviews are being Secretly Recorded 3) Always be Open-Minded & Follow the Facts Do not Operate off of Assumptions or Preconceived Notions 25 X. Miscellaneous Issues 4) Avoid Cat s Paw Theory Liability 5) Be OBJECTIVE 6) Focus on LISTENING 7) Be FAIR 26 XI. Conclusion 27 9