1 / 28

Why Investigate?

WORKPLACE INVESTIGATIONS for June 15, 2010 Presented by: MICHAEL J. SOLTIS CHRISTINA FEENY AND FRANK RUDEWICZ soltism@jacksonlewis.com | jacksonlewis.com Christina.Feeny@Thomsonreuters.com | Thomsonreuters.com Frudewitcz@dbo.com |bdoconsulting.com . Why Investigate?. Duty to Do So

dyllis
Download Presentation

Why Investigate?

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


  1. WORKPLACEINVESTIGATIONSforJune 15, 2010Presented by:MICHAEL J. SOLTIS CHRISTINA FEENYANDFRANK RUDEWICZsoltism@jacksonlewis.com | jacksonlewis.comChristina.Feeny@Thomsonreuters.com | Thomsonreuters.com Frudewitcz@dbo.com |bdoconsulting.com

  2. Why Investigate? • Duty to Do So • Faraghar / Ellerth • Kolstad v. ADA • Employee Morale

  3. Plaintiff’s Mantra • An Incompetent Investigator… • Did an Ineffective Investigation • Of Course, Reached the Wrong Conclusion • What Else Would You Expect?

  4. Credible and Defensible

  5. The Investigative Plan • Identify goals and objectives. • Prioritize the steps to be taken. • Set timetables. • Covert versus overt. • Choose the appropriate strategies and techniques • Digital Forensics, Field Interviews, Database and Internet Research, Surveillance, Sting, Etc.

  6. Investigative Goals & Objectives • Developing leads, facts, intelligence and general information: • about the issues in dispute • going to the credibility of witnesses, potential witnesses and evidence • obtaining critical evidence

  7. Investigative Plan • Elements of the violation • What are elements needed to establish the violation? • Legal/criminal • Policy Violations • Procedural violations • Administrative violations • Identify the targets of the investigation • Suspect known? • More than one suspect?

  8. Investigative Plan • Assign the appropriate investigator • Any improper relationship? • Any known bias? • Should outside personnel be involved? • Conduct interviews/collect facts • Ensure confidentiality of process • Maintain integrity of evidence and investigation

  9. Investigative Plan • Review information and verify • Compare information • Identify gaps • Documentation • Restrict dissemination

  10. Investigative Plan Goals & Objectives • Verify the occurrence • Rumors? • More to the story? • Any physical evidence? • Is this possible? • Identify the alleged violation • What exactly occurred? • Confirm the allegation or is it another offense?

  11. Investigative Approaches • “Quiet” (covert). • “Visible” (overt). • Transition from quiet to visible inquiries. • Public relations.

  12. Tools Available in an Investigation • The Client • The Law Firm • Public Information • commercial databases • private and proprietary databases • public records • the Internet

  13. Tools Available in an Investigation • People as sources • Interviews of witnesses • Surveillance • Forensics • Public relations

  14. Interviews of Witnesses • Who may be interviewed? • Practical considerations • Different approaches for interviews • Tape recording interviews • Eavesdropping and bugging • Demands for payment and other requests • Hiring former employees of an adversary

  15. Surveillance • During the initial phase of the investigation • Covert • Dangers inherent in this technique • Costs • Client Expectations

  16. Digital Forensics • Desktop and Laptop Computers • Servers • Mobile Telephones • Blackberry Devices • Other Digital and Digital Media Devices • Key Stroke Monitors • Developing Deleted Material • Establishing Downloads and Theft

  17. Forensics • Forensic Accounting • Fraud Auditing • Stings • Polygraphs • Examinations of Trash

  18. Professional Licenses • Retain only licensed investigators – performing investigations without a license is a crime in some states

  19. 3 Cs of Investigative Management • Competence • Corroboration • Common Sense

  20. Myriad of PotentialPrivacy Issues

  21. Searches • Desks, Files, Lockers • Cars • Mail • Strip Searches • Testing • Off-the-Job Conduct • Undercover Investigators

  22. Electronic Privacy Issues • Quon v. City of Ontario (Awaiting S.Ct. Decision) • E-Mail / Internet Issues • Eavesdropping • Recording Phone Calls • Electronic Monitoring • Taping

  23. Oh, the Places You Will Go…Causes of ActionInvolving Investigations

  24. Causes of Action Involving Investigations • Invasion of Privacy • Constructive Discharge • Defamation • False Imprisonment • Intentional Infliction of Emotional Distress • Loss of Consortium • And More…

  25. Key Retaliation Cases Relating to Investigations • Burlington Northern & Santa Fe Railway Co. v. White (S.Ct 2004) • Crawford v. Metropolitan Gov’t of Nashville and Davidson County, TN (S.Ct 2009) • Fincher v. Depository Trust and Clearing Corporation, (2d Cir. 2010)

  26. Recent Ethics Cases Relating to Investigations • Mohawk Industries v. Carpenter (S.Ct. 2009) • Costco Wholesale Corp. v. The Superior Court of LA County (S.Ct. CA 2009) • Sandra T.E. v. South Berwyn School District 100 and Sidley Austin LLP (7th Cir. 2010)

  27. Recent Ethics Cases Relating to Investigations • In re Whirlpool Corp. (7th Cir. 2010) • Speeny et al v. Rutgers, The State University et al (3rd Cir. 2010) • Steingart v. Loving Care Agency, Inc. , (S.Ct. NJ 2010)

  28. ANY QUESTIONS? THANK YOU FOR YOUR ATTENTION!

More Related