CAPLAW 2012 National Training Conference June 5 – 7, 2012

CAPLAW 2012 National Training Conference June 5 – 7, 2012 • San Diego, CA

2B. HR: The Who, What and How of Workplace

Investigations

Wednesday, June 6, 2012 8:30 – 11:45 am (with 30 min. break)

Handouts: PowerPoint Slides

John M. Polson, Esq. Partner Fisher & Phillips LLP 2050 Main Street, Suite 1000, Irvine, CA 92614 (949) 851-2424 [email protected]

1

Workplace

Investigations

Presented by:

JOHN M. POLSON, ESQ.

Fisher & Phillips LLP

Phone: (949) 851-2424

Email: [email protected]

www.laborlawyers.com

Atlanta · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Ft Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New Jersey ·New Orleans · Orlando ·

Philadelphia · Phoenix · Portland ME · Portland OR · San Diego · San Francisco · Tampa · Washington D.C.

Ramifications

of Botched

Investigations

Ramifications of Botched Investigations

• The Obvious: Liability for Not

Investigating

• Invasion of Privacy

• Defamation

• Constructive Discharge

• False Imprisonment

• Retaliation

2

Why Is This Training Important?

Deponent Scene 1

Documenting

The

Investigation

Documentation Plan

• Make an outline of questions

for witnesses

• Avoid noting preliminary

conclusions, assumptions,

comments, beliefs, etc.

• Take notes

• Discard redundant drafts?

3

Where Are Your Notes?

Deposition Scene 2

Documentation Plan

• Document Retention

• Dire consequences arising from failure to

retain documents

• Need written confirmation of efforts to

preserve documents and data

Documentation Plan

• Evaluate Privilege Issues

• Decide Whether Attorney-Client Privilege

May Be an Option For Notes

• Documents Generated As

Communications To Counsel or In

Anticipation of Litigation are Privileged

4

Documentation Plan

• Evaluate Privilege Issues

• Privileged Documents May Be

Problematic Because May Need Them for

Defense

• May Want to Leave Door Open for

Privilege In The Event Investigation Goes

South

Documentation Plan

• Decide whether statements

will be taken

• Cases emphasize the positive effect

of written statements in cases where

adequacy of investigation is

questioned

Documentation Plan

• Consider the investigative

questionnaire option

• Asking written questions

• Carefully orchestrated

• No chance to back out

• Everyone has to be treated similarly

5

Documentation Plan

• Create a file

• Privileged and non-privileged

sections

• Label it confidential

• Include everything at

conclusion of investigation

Identify the

Purpose of the

Investigation

What Are You Trying to Prove?

Deposition Scene 3

6

Purpose of the Investigation

“Who Done It” Investigations

• Purpose is confirming

misconduct

• It is the “who stole my

lunch” investigation”


“Who done it” Cotran defense

• Prior notice of rules

• Adequate investigation

• Chance to respond

• Substantial evidence

• Good faith decision


Affirmative Defense

• Primary goal is meeting a

legal standard

• Secondary goal of “who

done it.”

7


Harassment Investigations

• Remedial action defense

• Prompt and thorough

investigation followed by

appropriate remedial action

is a complete defense to

most claims


Negligent Retention Avoidance

• A reasonable investigation of

employee’s suitability for

continuing employment

following misconduct

• Commonly pled claim in

borderline harassment cases

Preparing To

Investigate

8

Preparing to Investigate

• Who Will Investigate?

• Any reason why it should be

someone besides you?

• Any bias arguments?

• Attorney issues – attorney

disqualification?


• Gather Documents

• Personnel files

• Relevant policies

• Time and attendance

• Production records

• Electronic data


• Electronic Document Gathering

• E-mail and computer hard drives

present valuable sources of

information

• There are few traps to avoid

9


• Electronic Data Gathering

• Wire tapping issues

• Invasion of privacy issues

• Importance of policy language

• Preservation of evidence


• Video or Photographic Surveillance

• Video surveillance of employees held

permissible when not accompanied by

audio capabilities and where the camera

located in a non-private office.

• Labor Code 435 prohibits employers

from making audio or video recordings of

employees in restrooms, locker rooms or

other rooms designed for changing clothes.


• Identify Potential Witnesses

• Think Creatively: Determine Who

Might Have Been There As Well

Who Was There

• Decide Who to Interview

• Publicity Issues

10


• Determine Order of Interviews

• Source of Complaint First

• Co-Workers and Others

• Alleged Perpetrators

General

Interviewing

Strategies

General Interviewing Strategies

• Employee Rights

• Issue of whether non-union

employees have the right to

have a co-worker present

• Regardless of NLRB position

on Weingarten, no right to have

an attorney present

11


• Opening Statements

•Purpose of Interview

• Confidentiality

• No Retaliation or Reward

• No Fait Accompli

• Ongoing Cooperation


• Keep Opinions to Yourself

• Watch Body Language

• Document Their Story

•Statements

• Initial Notes

• Other


• Start with background questions

• Ask broad questions about the

work environment before moving

to specific alleged incidents

• Don’t ask leading questions until

very end; it’s better to let witness

tell the story

• Do not hold them hostage

12

Can I Leave Now?

Deposition Scene 4

Interviewing

Victims

Interviewing Victims

• Strongly consider having them

write down complaint

• EEOC issue

• Confirm times, dates, and

locations

• What did they do after the

incident?

13


• In addition to witnesses,

identify others subject to

similar conduct

• Determine whether victim

engaged in similar conduct


• Determine how victim

responded to the incident

•Show displeasure?

• Determine if victim spoke with

others about incident

• Evaluate compliance with

complaint procedure


• Ask what they would like to see

happen

• Can they work with perpetrator

• Consider leave of absence

during investigation

• Don’t allow victims to quit

during the investigation

14

Interviewing

Perpetrators

Interviewing Perpetrators

• Consider what happens if

perpetrator refuses interview

• Consider how you will lock

down their story


• Start broad and work down to

specifics

• Give them a chance to fully

explain their side of the story

• Ask for witnesses

15


• Ask if accused before

• Ask for evidence of

encouragement/set-up

• Explore working relationship

with victim and witnesses


• Give them a copy of

harassment / discrimination

policy if appropriate

• Counsel again on retaliation

and confidentiality

• Strongly consider putting them

on leave

Interviewing

Co-Workers

16

Interviewing Co-Workers

• Be prepared for reluctant

witnesses and decide how they

will be handled

• Determine relationship between

witness and the parties involved


• In addition to reported incident,

ask about similar incidents in

past

• Ask about hearsay in addition

to what they witnessed (gossip

can lead to good leads)


• Ask about changes in

complainant’s mood and

performance

• Ask about animus between

complainant and perpetrator

• Ask them if you missed

anything

17

Interview

Closing

Remarks

Interview Closing Remarks

• Reiterate two-way

confidentiality

• Instruct them to contact you

with additional information

• Thank them for their help

Closing

Documents

18

Closing Documents

• Prepare an investigative report

• Describe chronology

• Name interviewees

• List documents reviewed

Closing Documents

• Prepare an investigative report

• Attach relevant records

• Don’t make non-factual

conclusions

• Be brief

Be Ready to Defend Conclusions

Deposition Scene 5-6

19

Determining

Remedial

Action

Determining Remedial Action

• Judge by legal standards

• Preventing future conduct

• Making good faith decisions

• Acting reasonably


• Evaluate credibility of evidence

• Evaluate perpetrator’s history

• Determine how similar conduct

handled in past

20


• Describe bases for decision in a

way that does not create

evidentiary admissions

• E.g., Don’t fire for “sexual

harassment” as opposed to

“inappropriate behavior”

Victim Follow-

Up

Victim Follow-Up

• Inform victim of result of

investigation

• Protect privacy of perpetrator

• Discuss retaliation protection

21

Victim Follow-Up

• Have them acknowledge result

and their satisfaction with same

(in writing)

• Monitor situation

Retaliation

After the

Investigation

What Does At-Will Mean? And,

He Was a Bad Fit?


22

Increase in Retaliation Claims

• For the second year in a row, retaliation was

the largest category of EEOC charges:

– Retaliation: 36.3%

– Race: 35.9%

– Disability: 25.2%

– Age: 23.3%

– National Origin: 11.3%

Legislatures Are Fueling The Fire

• Every state except one has some type of

whistleblower protection, either statutory,

common law, or both

• In the past decade, Congress enacted 12 new

significant laws protecting the rights of

workers to complain

New Federal Legislation

2000 Aviation Investment and Reform Act ~ airline workers

2002Sarbanes-Oxley Act ~ employees of publicly traded companies

2005Energy Reorganization Act Amendments ~ nuclear power workers

2007Surface Transportation Assistance Act Amendments ~ truck drivers

2007 Federal Rail Safety Act ~ rail workers

2007National Transit Systems Security Act ~ mass transit workers

2008Consumer Product Safety Improvement Act ~ retail workers

2008Department of Defense reauthorization ~ defense contractors

2009American Recovery and Reinvestment Act ~ stimulus recipient workers

2010Food Safety Modernization Act ~ food industry workers

2010 Patient Protection and Affordable Care Act ~ health care workers

2010Dodd-Frank Act ~ workers at publicly traded companies and their subsidiaries and

affiliates

Source: The Government Accountability Project.

23

Cat’s Paw and Other Tainted

Decision Making


Workplace

Investigations

Presented by:

JOHN M. POLSON, ESQ.

Fisher & Phillips LLP

Phone: (949) 851-2424

Email: [email protected]

www.laborlawyers.com

Atlanta · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Ft Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New Jersey ·New Orleans · Orlando ·

Philadelphia · Phoenix · Portland ME · Portland OR · San Diego · San Francisco · Tampa · Washington D.C.