October 24, 2013

1. Conducting a workplace investigation A Presentation for PASCO October 24, 2013

2. The Duty to Conduct an Investigation Once an employer receives a complaint of harassment (or any unlawful employment practice), the employer has a duty to investigate and, if necessary, correct the behavior.

3. Duty to Whom? • Complainant – investigation is a “reasonable step” to prevent discrimination, harassment, etc. • Affirmative Defense if employee fails to take advantage • Accused – employer must have “good cause” to terminate an individual for alleged misconduct • Courts recognize negligent investigation as separate cause of action

4. When to Investigate

5. Do I Need to Investigate This Claim?

6. Types of Claims Commonly Requiring Investigation • Harassment • Discrimination • Retaliation • Workplace Violence • Employee Theft

7. Requirements of Investigation

8. Most Important Characteristics Conduct an investigation to arrive at good faith conclusion based on reasonable grounds supported by substantial evidence. Cotran v. Rollins Huding Hall Int’l Inc. ; Silva v. Lucky Stores, Inc. • Begin promptly after receiving complaint • Have a policy regarding investigations • Provide both sides opportunity to present position and contradict relevant statements • Allows for progressive discipline • Designate well-trained individual to investigate • Base ultimate findings on objective evidence • Proper investigation differs by circumstance

9. Preliminary Issues To Consider

10. Who Should Investigate? • Experience/Background • Neutrality and Impartiality • Approved by Both Parties • In writing • Typically HR Personnel • Inform Need to Know Persons

11. Documents/Evidence Needed • Personnel File • Performance Appraisals • Email Communications • Prior Investigations Performed • Voicemail/ Cell Phone Communications

12. Applicable Policies • Personnel Polices • Handbook • Memos • Benefits Books • Collective Bargaining Agreements • Law

13. Interim Actions Duty to take interim steps to stop alleged harassment, protect employees, organization property, or integrity of an organization during an investigation. Bradley v. Dept. of Corrections & Rehab(2008); Swenson v. Potter (9th Cir. 2001) • Typically Involves Removing Accused • Temporary Transfer • Administrative Leave • Paid/Unpaid • Contact Person/Return Process • Notice • NOT disciplinary • Proceed Carefully with Complainant

14. Witnesses • List of Witnesses • Complainant • Accused • Suggested Witnesses • Is there a preferred order? • Location of Interviews • Written Statements Prior to Interviews

15. Conducting the Investigation

16. Initial Meeting With Complainant

17. Meeting With Accused • Before meeting put together outline with facts • Put accused at ease • Explain no decisions made yet • Outline of process • If says complainant is lying ask for motivation • Ask for supporting documents and witnesses

18. Interviewing Witnesses • Keep in Mind Possible Motivations • Explain the Process • Stress Confidentiality • Inform Only to Extent Necessary • Ask for Additional Information/Witnesses

19. Helpful Tips for All Interviews Prepare Effective Questioning • Have a Checklist • Prepare Opening Statement • Have Helpful Documents • Document Relevant Facts • Observe and Record Demeanor/behavior • Open Ended • Broad to Narrow • Listen and Follow-Up • Flexible Q’s • Ask Hard Q’s • Get Chronology • No Leading Q’s

20. Assessing Credibility • To Do Immediately After Interviewee Leaves • Compare Demeanor to Typical Behavior • Body Language • Reactions to Allegations • Did Witness Inspire Confidence • Forthcoming? • Logical Consistency • Chronology • Common Sense

21. Preparing an Investigation Report

22. Contents of Report • Allegations Made and Relevant Facts • Date Investigation Began and Completed • Name of Investigator and Neutrality • Name and Dates of Interviewees • Key Factual Finding and Analysis • Application of Guidelines (policies) • Final Decision and Conclusion

23. Instituting Corrective Action

24. Disciplinary Actions • Options Available: • Oral, Written, or Final Warnings • Separation or Transfer • Demotion or Reduction in Pay • No Raise or Bonus • Additional Training or Monitoring • Suspension (with or without pay) • Termination • Considerations: • Notice • Consistency • Confidence in Investigation • Employee History/Mitigation

25. Consider Who Should Be Involved In Making Decision • Must be Objective and Unbiased • Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011) – Employer can be held liable for actions taken by unbiased decision-maker if non-decision maker influenced the adverse action with his own discriminatory animus.

26. Corrective Measure – Reasonably Calculated to End Harassment • If first measure is not effective, more severe measures must be taken. • If employer’s actions do not stop unlawful conduct, they may not establish the affirmative defense. • Question is if behavior stopped • Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992) did not meet obligation where only held counseling sessions for harasser • Star v. West, 237 F.3d 1036 (9th Cir. 2001) did meet obligation where held counseling and changed shifts • Should be consistent with past measures

27. Meet With Complainant and Accused (Separately) • Complainant and Accused • Explain Issues, Steps Taken, and Conclusions Drawn • Discuss Actions Being Taken • Explain Appeals Process and Ability to Bring New Info • Notify in Writing • Stress Confidentiality • Complainant • Rights if any retaliation • Accused • Anticipate Questions and Have Answers

28. Litigation Issues

29. Create Investigation File • Keep All Information for Investigation Separate • Create Final Investigation File • Include • Written Communications from Complainant • Issue Confirmation Memo • Admin Leave Notice • Investigation Summary • Results and Notifications • Supportive Notes and Documentation • Written/Electronic Communications • Destroy all Drafts • Mark Confidential

30. Protecting Attorney/Client Privilege • Telling your attorney facts does NOT make them undiscoverable • Address written communication to attorney • Write “Privileged and Confidential” • Copy only people who need to know • Do not share or discuss with others

31. Responding to Outside Agencies • Employee may file charge with DFEH, EEOC, Labor Commissioner, OSHA • Work with counsel • Choose single person for all communication with the agency • Draft letter summarizing investigation

32. Privacy • Protect privacy of individuals as much as possible • Make all documents “Need to Know” • Create policies stating that there is no expectation of privacy at work

33. Question and Answer