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Conducting Internal Investigations: Lessons Learned from the NFL's Handling of the Ray Rice Investigation. Tim McConnell Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. tmcconnell@bakerdonelson.com. “Perspective”.
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Conducting Internal Investigations: Lessons Learned from the NFL's Handling of the Ray Rice Investigation Tim McConnell Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. tmcconnell@bakerdonelson.com
“Perspective” • The capacity to view things in their true relations or relative importance
Also known as… • “I know nothing!”
Ray Rice v. Deflategate • Let us compare: • Domestic violence v. under-inflated footballs • Initial 2 game suspension for Rice • Tom Brady – 4 game suspension • Patriots fined $1 million and lose 2 draft picks • Mueller Report for Rice – 96 pages • Wells Report – 243 pages (the Wells Report is more than 82,000 words, longer than some famous novels including "The Great Gatsby" (47,094), "Brave New World" (63,766) and "The Secret Garden (80,398).
Conclusion • “It is more probable than not” that the NFL lacks perspective
Considerations • Compliance • Key aspect of any robust program • Address issues before they turn into litigation • Corporate self-analysis • Gather information in preparation for potential litigation • Legal • In the employment context, potential defense to claims of harassment
Defense to hostile work environment claims • The employer exercised reasonable care to prevent and promptly correct harassment; and • The employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer
Reasonable care to prevent harassment includes: • Implementation of anti-harassment policy • Implementation of appropriate training • Implementation of effective investigation procedure
Reasons preventing employee from taking advantage of employer’s corrective opportunities: • Fear of retaliation • Burdensome process • Reason to believe process will be ineffective
KEYS TO AN EFFECTIVE INVESTIGATION lessons learned courtesy of the nfl
Don't send in the rookie quarterback! • An internal investigation is a crucial moment. It will often times "head off" potential litigation, and even in those situations when the lawsuit is filed, the company, having done its investigation, will be much better prepared to defend the case. • As such, given the importance of this moment, it is not the time to let an inexperienced rookie handle the investigation. Employers should always use a "veteran" investigator, and therefore, at the outset, careful consideration must be given as to who is the best person to handle the investigation.
Develop a Game Plan! • Given the crucial nature of every internal investigation, this is not the time to just throw a "Hail Mary" and hope for the best. • Before beginning the investigation, decisions should be made as to whom should be interviewed, the order of such interviews, what evidence should be gathered and the potential legal issues in play. • In addition, in every investigation there will be unexpected twists and turns, and without a plan to guide the process, it is easy to get off track. Stick to the game plan and then make adjustments as needed!
It's All About the Fundamentals! • In the Rice investigation, the NFL failed to execute on basic steps that became painfully obvious. • For example, when the first video was released, the obvious next question was "Are there other videos?" Also, the second video was purportedly delivered to the NFL, but it appears that the video never made its way to the people conducting the investigation. • Lesson learned: ask even the obvious questions, uncover all relevant information and secure all relevant evidence! An investigation should not be concluded until the investigator has completely gathered, assessed, recorded, and reported the facts.
Be a Lockdown Investigator! • As we all know, once a lawsuit is filed, it is not unusual for witnesses' memories and recollection of events to change, whether it be because of the passage of time, simple loss of interest in the situation, or the fact that someone is pursuing money. • Consequently, it is essential to lockdown witness statements about the events at issue when their memories are fresh and not tainted by the prospect of receiving a large amount of money in a lawsuit. • There are a variety of ways to do this, and every seasoned investigator has his/her own approach to doing so. Regardless of the method, though, lockdown the witnesses.
Anticipate the Blitz! • At some point in time, it is likely that the investigation will come under scrutiny, whether it be through an aggressive plaintiff's lawyer or a governmental agency, and it is important to understand this fact throughout the investigative process. • So, how do you anticipate the likely blitz? Execute the fundamental steps, uncover the truth and deliver it to the company, no matter the implications. • Prompt, thorough, fair and impartial investigations will protect the company from being blindsided.
Blocking and tackling executing the fundamentals!
Goals of an effective investigation procedure • Confidentiality – Mitigates the fear and likelihood of retaliation • Promptness – Evidences reasonable care to prevent future harassment • Thoroughness and impartiality – inspire employee confidence and help prevent lawsuits
NLRB’s position on confidentiality • With respect to confidentiality rules applicable in employer investigations, the Board in Banner Health ruled that an employer must determine on a case-by-case basis whether employee-witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover-up. • The Board found that the employer’s “blanket” approach of maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct violated the Act.
Policy language rejected by the NLRB • Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it to strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.
NLRB approved employer confidentiality rule: • Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.
The takeaway on confidentiality • Document the specific justification for confidentiality in each instance in which a confidentiality rule is imposed
Five Step Process • STEP 1: Intake • STEP 2: Interview Accused • STEP 3: Interview Witnesses • STEP 4: Evaluate Evidence / Draw Conclusion • STEP 5: Close the Loop / Communicating Results
Step 1: Intake: interview the complainant • If possible, gather and review documentation prior to beginning interviews • Ask Appropriate Questions: • Specific statements or actions of the alleged harasser • Complainant’s reaction to those incidents • IMPACT on complainant’s life • Third parties who may have relevant information • Existence of physical evidence • Complainant’s desired result of investigation • Discuss the importance of confidentiality and its limits. • Calm complainant’s fear of retaliation.
STEP 1: Intake (cont’d) • Consider taking interim action to prevent retaliation or further misconduct • May include: schedule changes, transfers, or paid leave • For complainant, only if voluntary • For alleged harasser, can be involuntary but must be portrayed as non-disciplinary • Maintain confidentiality of interim action.
Step 2: Interview the Accused • Ask Appropriate Questions: • Response to allegations • Complainant’s motivations to falsely accuse • Third parties who may have relevant information • Existence of physical evidence • Discuss the importance of confidentiality and its limits. • Warn against retaliation. • Take factual notes.
Interviewing (generally) • 1. Adopt a neutral demeanor • Do NOT take sides • Do NOT ask leading questions (which presume an answer) • DON’T ASK: “Michael, isn’t it true that you sexually harassed Pam on Monday the 8th?” • INSTEAD: “Michael, explain to me what happened between you and Pam on Monday the 8th.”
Interviewing (generally) • 2. Search for FACTS, not OPINIONS or BELIEFS • Concrete facts are fixed in time and do not change • They may be corroborated independently by other witnesses’ statements or documentation • Opinions & beliefs are NOT fixed and may change • They are difficult to corroborate
Interviewing (generally) • 3. Build rapport with the interviewee • Use a friendly, conversational approach • NOT a cross-examination • Let the interviewee reach a “comfort level” before asking tough or embarrassing questions • Choose an interviewing environment that guarantees the interviewee’s privacy
Interviewing (generally) • Tips for asking good questions: • Use fact-finding questions: • Who, What, Where, When, How • Use open-ended questions: • “Could you describe…” • “Could you tell me what happened…” • Exhaust the topic before moving on: • “Can you think of anything else important that happened that night?”
Interviewing (generally) • More tips for asking good questions: • Don’t interrupt the witness: • Instead, focus on your note-taking • Don’t ask for a legal conclusion • DON’T ASK: “Did you see him sexually harass her?” (sexual harassment is a legal term) • INSTEAD: “Did you see him touch her in a way that made her uncomfortable?”
Step 3: Interview Witnesses • Ask Appropriate Questions • What witness saw or heard • What witness has been told by alleged harasser or complainant • Other witnesses with information • Open-ended questions • Existence of physical evidence • Discuss the importance of confidentiality and its limits.
Step 4: Drawing Conclusions • Re-interview parties and witnesses regarding new information. • Follow same guidelines as previous interviews. • Make credibility determinations about the interviewees. • Refer to notes taken during interviews & evidence gathered.
Step 4: Drawing Conclusions • Alleged misconduct did occur • Alleged misconduct did not occur • Investigation is inconclusive
Step 5: Closing the Loop • Take necessary corrective action: • To stop harassment and ensure it does not recur • To counter the effects of harassment on victim’s life • Corrective action may include: • Reprimands, reassignment, demotion, suspension, counseling, termination • Note: Inform accused and accuser of outcome
