Ethics and Avoiding Liability in Investigations

1. Ethics and Avoiding Liability in Investigations

2. Ethical Requirements in Investigations • Know the policies/procedures for conducting an investigation; • Strictly adhere to those polices/procedures; • Always document your rationale where deviations are required.

3. Ethical Requirements (cont.) • Know the applicable statutes. • Know how the courts apply the applicable statutes. • Identify the Correct Discrimination Theory. • Never Waiver from the Applicable Prima Facie Case. • Consult with Risk Management

4. Possible Ethical Concerns • Conflict of Interest • Professionalism • Preparation • Thoroughness • Personal Style • Integrity • Privacy Interest • Presumptions of “Guilt”

5. Potential Conflict of Interest • Lack of skill • Lack of objectivity • Direct chain of supervision • High-level manager/executive • Politically sensitive • Witness candor impossible • Clear legal exposure (attry demand)

6. Legal Considerations • Expectation ofPrivacy • Emails • Voice Messages • Correspondence • Computers • Flash Drives • Cameras

7. Legal Considerations • Typical Privacy Implications • Searches of personal property • Questions regarding sexual relationships • Off-duty conduct • Performance or behavior tied to personal issues, substance abuse or disability • Is there a tie to the workplace?

8. Legal Considerations • Defamation • Utah law follows the common law definitions of libel (written) and slander (oral). • Statement may be considered defamatory if the "statement's tendency is to injure a reputation in the eyes of its audience." • The subject need only show that the person was negligent in making defamatory statements. • False statements are an essential element of defamation and the person making the statements must prove the statements were fact, not opinion.

9. Defamation (cont.) • The statements must also be published, either verbally or in writing. • When undertaking an investigation, do not convey allegations to anyone who does not need to know them. • When you do need to release any information, be clear that things are merely allegations until otherwise determined.

10. Legal Considerations False Imprisonment • “….is when an act ‘intending to confine the other… within boundaries fixed by the actor,’ which ‘results in such a confinement’ while ‘the other is conscious of the confinement or is harmed by it.”” Tiede v. State, 915 P.2d 500, 503 n.4 (Utah 1996)

11. Allegations Unsubstantiated • If a complaint that turns out to be unfounded was submitted in good faith, no discipline should be required, and the complainant must not be subject to retaliation.

12. Wrongful Termination • Serious harassment is generally grounds for termination. • If the "wrong" conclusion was reached, the employee needs to be reinstated. • A good faith investigation can protect the employer from damages.

13. Investigation Scope • Limit findings to the facts/allegations. • Render conclusions limited to applicable policies. • NEVER-EVER make conclusions of law. • Address peripheral Issues separately.

14. Managing the Workplace During An Investigation • Separate the complainant and alleged harasser. • Do not coach witnesses, complainant, or alleged harasser. • Refer attorneys or representatives to the Human Resource Department. • Maintain confidentiality. • Issue litigation hold to preserve evidence. • Refer employees to helpful auxiliary services (EAP etc.).

15. Managing the Workplace After An Investigation • Prepare necessary correspondence. • Assist parties return to workplace. • Offer mediation or conciliation meeting. • Provide training. • Follow up with parties to ensure there is/has been no retaliation.

16. Investigations • Are a key management tool. • Prevent employer liability. • Must be objective and neutral. • Must be acted upon. • May effect employee’s jobs. • Have significant legal consequences.

17. Questions and Answers ?