INVESTIGATIONS & EMPLOYEE DISCIPLINE

1. INVESTIGATIONS & EMPLOYEE DISCIPLINE Presented By: Alison Smith

2. COMMON COMPLAINTS • Hostile work environment or harassment (sexual or non-sexual) • Discrimination • Retaliation • Workplace grievances (including bullying, violence, theft, misuse of Company property and other violations of rules/policies/procedures)

3. Test your knowledge Nicola comes into HR and meets with an Analyst to complain that her co-worker Heidi constantly checks her work for mistakes and has told other employees she is lazy. • Should you investigate?

4. National statistics • Claims of harassment/hostile work environment and discrimination are on the rise! • EEOC charges totaled almost 30k (source:http://www1.eeoc.gov/statistics/enforcement/charges.cfm) • Economic factors are partly to blame. • Don’t underestimate the importance of providing supervisory training to managers/directors. Managers should attend training where they are taught the importance of effective leadership and promoting a workplace free of discrimination.

5. BEFORE YOU GET STARTED • Ask yourself whether this is an issue HR needs to investigate (“HR Investigation” versus “Department Investigation”). Look at the following factors: • Source of complaint • Formal Complaints • Informal Complaints • Rumors • Observations • Complexity • Seriousness • Union versus non-union employees

6. BEFORE YOU GET STARTED • Keep in mind that your investigation should be as thorough as possible. • Why? A proper and thorough investigation reduces the likelihood of a future lawsuit, which could be very costly for the Company. • Keep in mind that the results of your investigation may be precedent-setting. • Be fair and objective.

7. BEFORE YOU GET STARTED • Do not come to any conclusions prior to starting the investigation (don’t pre-judge!). • Do not get started until you have a game plan for conducting the investigation. • If you are truly in doubt as to how to proceed, seek legal counsel.

8. BEFORE YOU GET STARTED • Step 1: Select an investigator • Who should investigate the complaint? • Trained • Familiar with policies/practices • Aware of pertinent legal issues • Respected by peers • Impartial (little to no relationship with accuser/accused) • Able to record events accurately • Able to maintain confidentiality

9. BEFORE YOU GET STARTED • Attorney (wide-spread, large scale or complex issues) • Woman v. Man • Minority • Personality fit • Management • Staff • Teams of more than one person?

10. Before you get started Step 2 (After you have selected the investigator) • Prepare a letter to the employee acknowledging receipt of the complaint. • Why? This avoids any appearance that the complaint is not being handled. Minimize potential employee misunderstandings while complying with Company policy. • What should your letter say? • Indicate when the complaint was received, and inform the employee that an investigation will promptly ensue. • Be sure to adhere to timelines outlined in employee handbooks.

11. Sample letter Dear Ms. (or Mr.) _______:   This confirms receipt of your complaint dated _________, and received by the Human Resources Department (“Human Resources”) on _____________. Please be advised that Human Resources takes any claims of ____________________ very seriously and will promptly begin an investigation into the allegations raised in your complaint. In furtherance of the investigation, we would like to schedule an appointment with you to discuss the allegations in your complaint, and to conduct a comprehensive review of your claims. In order to schedule an appointment with Human Resources, please contact __________________ at (954)__________________ as soon as possible. Should you have any questions or concerns regarding this matter, please feel free to contact me at (954) _________. Very truly yours, Jane Doe Human Resources Director

12. Step 3: Carefully review the complaint and make a list of the allegations contained in the complaint. • What exactly is being alleged? • Are discrimination claims being raised? • Discrimination occurs when a person is subjected to disparate (and unfair) treatment based on his/her: race; religion; nationality; age; gender, among other protected categories. • Are claims of retaliation being raised? • An employee is the victim of retaliation when he/she suffers an adverse job action because he/she engaged in protected activity.

13. Step 4: • Decide who you need to interview. • Who is the victim? • Who is the complainant? • Who is the subject? • Should you interview the complainant? • YES!

14. For each allegation, note whether the complainant has identified any witnesses to the alleged mistreatment. • Note whether the complainant has identified any other victims. • Look at recent complaints by Company employees.

15. Step 4: Review and familiarize yourself with the Company’s policies and procedures. • The Company prohibits discrimination based upon race, color, religion, gender, national origin, age, disability and sexual orientation. • The Company is committed to maintaining a work environment free of discrimination, harassment and retaliation.

16. Review Department Rules. • Review any other applicable company rules.

17. THE INVESTIGATION • Decide who you need to interview. • Pay special attention to persons who have been identified in the complaint as witnesses to the wrongful acts alleged in the complaint. • Should you interview the complainant? • YES! • If the complainant has not listed any witnesses in the complaint, when you interview the complainant, specifically askif there are any witnesses to the alleged incidents. • If the complaint is vague and does not provide you with a clear picture as to whether the employee is alleging discrimination, harassment, or retaliation, ask questions that will help you determine exactly what the employee is alleging.

18. THE WITNESS INTERVIEWS • Once you have determined who your witnesses are, schedule meetings with the witnesses. • Is there a benefit to conducting witness interviews in person? • Before you start the interview, be sure to emphasize the importance of confidentiality. • All interviews should be memorialized.

19. THE WITNESS INTERVIEWS • What do you need to know from the complainant? • Specifics! • Decide what documents will be helpful to you in conducting the interview. • Personnel files? • Disciplinary files?

20. THE WITNESS INTERVIEWS • TAKE GOOD NOTES! • Ask: who, what, when, where and why. • To the victim/complainant: • What happened? • Who did it? • Who saw it?

21. THE WITNESS INTERVIEWS • When did it happen? • Where did it happen? • Why do you think it happened? • Why do you think you are being treated differently than others? • Who is being treated better? • Who else is a victim?

22. THE WITNESS INTERVIEWS • What did you do? • Did you report it to your supervisor or other member of management? • What was the outcome of that? • What are your expectations? • What do you want the Company to do?

23. THE WITNESS INTERVIEWS • To the subject: • Specify each allegation against the subject. • Have the subject respond to each allegation.

24. THE WITNESS INTERVIEWS • What is the relationship between the subject and the accuser/complainant/victim? • Any potential bias or other motive (on the part of the subject & victim)? • Any evidence to refute the claims of the complainant/victim?

25. THE WITNESS INTERVIEWS • Focus on any personal observations. • Ask about supporting documents? Notes? • Where is the evidence? • Funnel approach (esp. as relates to “what”) • Any follow up with any of the witnesses MUST be documented.

26. CONCLUDING THE INVESTIGATION • Prepare a report of your findings. • Witness summaries • Conclusion • CORRECTIVE ACTION? • If allegations are substantiated, make sure punishment is meted out. Punishment should fit the crime. • Confer to determine discipline.

27. CONCLUDING THE INVESTIGATION • Discipline could be an apology, training, verbal coaching, written reprimand, up to termination. • Even if the allegations are unfounded, there might be corrective action that can be taken. • Advise the victim/complainant and the subject of the results of the investigation.

28. CONCLUDING THE INVESTIGATION • REMEMBER! The investigation MUST be kept confidential until it has been completed! • No retaliation! • There can be no retaliation against the victim/complainant or other witnesses.

29. Some investigative failures • Completely ignoring complaints! • Coming to a conclusion before even starting the investigation. • Selecting the wrong investigator. • Failing to interview additional witnesses identified during the investigation. • Should you interview every witness identified during your investigation?

30. Some investigative failures • Too many people involved in the investigation. • No lead investigator. • Failing to obtain documentation referenced by witnesses • Failing to document or preserve witness statements. • Failing to include HR if it is a Department investigation. • Failing to involve Legal in matters that are controversial, complex or will most likely result in litigation.

31. Some investigative failures • Failing to follow up on additional allegations that come out during an investigation. • Failing to follow up with the complainant. • Failing to document.

32. EMPLOYEE DISCIPLINE

33. GOOD RECORD KEEPING= DISCIPLINE THAT WORKS! • When you think about discipline, you should immediately think of the word “documentation.” • Aren’t employees at-will? • Although most employees are at-will, this does not prevent them from filing a lawsuit if they are disciplined for things like discrimination or retaliation.

34. Relevant laws include Federal (Title VII, ADA, ADEA, FMLA), State (FCRA) and Local (City or County Ordinances) employment laws. • Documentation helps to provide PROOF of employee misconduct. • Having proper documentation reduces employer liability, saving the City significant cost. • Otherwise, if an employee brings an employment-related lawsuit, it will be he-said, she-said resulting in credibility issues.

35. Case Examples: • Norton v. Leon County School Bd. (Fla. 2nd Judicial Circuit 2003)— • Employee alleged that he was discriminated against on the basis of his age when another employee was selected for the Chief Mechanic position for which he applied.

36. Employer offered documentation evidencing times when plaintiff had been disciplined for 1) lack of respect and acts of insubordination; (2) lack of punctuality and dependability; (3) hostility and resistance to management policies; (4) failure to follow basic workplace rules; and (5) his interview performance. • Court held that employer’s documentation demonstrated that the employer had a legitimate, nondiscriminatory basis for the employee’s termination.

37. Documentation is also important in the unemployment context. • Employees routinely file for unemployment compensation benefits if they are terminated from employment. • The standard of proof in unemployment cases is competent substantial evidence. • In order to meet that standard, employers must be prepared to present documentation evidencing the basis for the employee’s termination. • That documentation must show that the employee committed misconduct connected with his or her work.

38. Documentation helps to: • Ensure that discipline is meted out consistently. • If the employer gets sued for discrimination, the employer has to establish that another employee was not treated more favorably. • If you have a policy that says that employees will receive a written warning if they are more than five times late per month, there should be written warnings for any employees who violate that policy. • Prove that the employee was not punished unfairly and was sanctioned in compliance with the employer’s policies.

39. Preserve evidence of the facts that resulted in the discipline. • Witnesses (including the person who issued or recommended the discipline resign or otherwise separate from the employer) and having the documentation allows • Assist witnesses in recollecting the events that warranted the discipline. • Serves as evidence/provides a chronology of prior misconduct to assist in dealing with future misconduct. • Documenting employee issues can help to rehabilitate the employee and improve his/her performance.

40. Good documentation is dependent on fair, sound and consistently applied policies. • You must clearly communicate your policies to your employees so they understand when they can/will be disciplined. • Most employer’s policies state that they follow progressive discipline; however, progressive discipline is not always appropriate.

41. HOW? • Verbal counseling • Written reprimand • Performance Improvement Plan • Suspension Notice/Letter • Termination Notice/Letter • Performance Appraisals/Evaluations • Note that other forms of discipline should be considered including demotions and transfers.

42. Verbal Counseling/Reprimand • Generally the first step in the disciplinary process, but may be skipped based on the egregiousness of the offense. • Have a witness with you when you give the employee the counseling. • Document the counseling (note to employee file or more formal memo to employee’s personnel file). • The employee is not usually provided with the write-up of the counseling.

43. Written Reprimand • Generally the second step, although it may be the first. • Formally meet with the employee and his/her director. • Have a witness present. • Be clear in the written reprimand as to the conduct for which the employee is being disciplined. • For e.g., “On April 25, 2014, you were observed by Tom Abraham and Misty Smith sleeping at your work station.” Mr. Abraham and Ms. Smith observed you for a total of 10 minutes and attempted on several occasions to wake you. They then got my attention and I observed you sleeping for a full ten (10) minutes. Your behavior is in violation of X policy, which prohibits sleeping on the job. Should you engage in this behavior in the future, you may be subject to discipline up to and including termination of your employment.”

44. Written Reprimand • Include any and all policies that the employee has violated by his/her conduct. • Provide the employee with a copy of the written reprimand. • The reprimand should clearly state that the employee’s signature on the warning does not mean the employee acknowledges any wrongdoing, but merely acknowledges receipt of the reprimand. • The employee does not have to sign the reprimand. • What if the employee does not want to sign the reprimand and refuses to even write refused to sign on the reprimand?

45. Written Reprimand • If the employee refuses to sign, either: • (1) you indicate as much on the written reprimand; or • (2) have your witness sign the warning with a note that the employee refused to sign.

46. Performance Improvement Plan • May or may not be part of a written reprimand or a performance appraisal/evaluation. • Should specifically describe the employee’s deficiencies. • Should state ways in which employee is expected to improve. • Discuss specific steps for improvement (classes, training, certifications, change in attitude, attendance).

47. Performance Improvement Plan • Should specify a timeframe for improvement. • Don’t make the PIP open-ended or indefinite. • Having a deadline allows the employer to act if the employee fails to improve by that deadline. • Once a timeframe has been established, allow the employee all of that time period within which to improve! • Should provide/refer to any support that the supervisor will provide to assist the employee to improve.

48. Performance Improvement Plan • Make sure you follow up with the employee once the timeframe has expired, to ensure that the employee has improved and met the necessary goals outlined in the PIP.

49. Suspension Notice/Letter • Investigate first! • May be short (one day) or lengthy (5 months). • Usually unpaid, although some employer’s allow for paid suspensions. • Paid suspensions are not as effective in curtailing poor employee performance/behavior. • Generally, if an employee continues to violate the policy at issue, the next step is termination. However, the employee could be given another suspension instead. • If another suspension is given, it should be longer than the previous suspension.

50. Suspension Notice/Letter • Specify the duration of the suspension (for e.g., 30 days). • Indicate the start date and end date of the suspension. • Indicate whether the suspension will be paid or unpaid.