Conducting Effective Internal Investigations

1. Conducting Effective Internal Investigations Presented by: Alison T. Shaw, Esq.Baker, Donelson, Bearman, Caldwell & Berkowitz, PCPhone: (423) 752-4412E-mail: ashaw@bakerdonelson.com

2. Why Investigate? • Allows HR to make informed, effective recommendations • Limits liability • Demonstrates concern for employees and the work environment • Shows commitment to employment law compliance

3. Management must conduct a prompt and through investigation and take appropriate corrective action when put on notice of unlawful discrimination or harassment in the workplace. Employment Law Compliance

4. Management sees or hears inappropriate conduct Management hears rumors of inappropriate conduct When to Investigate?

5. When to Investigate? • A complaint is made (by anyone) • An EEOC charge or lawsuit is received and is the first notice to management of a concern • A demand letter is received and is the first notice to management of a concern

6. The Investigation Process

7. Intake Conduct interviews Obtain documents and other evidence Evaluate evidence Make findings and close the loop Five Steps

8. INTAKE

9. If you have a concern . . . Our door is always open. We welcome your thoughts, comments, and concerns.

10. Date, time, length of each interview Persons present Questions Facts Legible Reliable A Word About Taking Notes

11. Determine time line/take notes. Get details/open ended questions. Establish context. When, where, how did the conduct allegedly occur. Ask about impact on work. To Take A Complaint

12. Obtain documents and other items that may be pertinent to the investigation. Ask about physical area if relevant. Ask for witnesses and any other employees who may have similar concerns. Determine if concerns have been raised to other members of management.

13. Find out what the employee wants. Ask if there are any questions the employee thought would be asked that were not. Explain next steps and the process including any interim measures during the investigation. Ask for questions or concerns.

14. Discuss Confidentiality Very Carefully

15. Company takes all complaints seriously Company is conducting a thorough investigation Company will provide you with conclusions of the investigation Approximate time line No Retaliation/Report immediately ClosingThe Interview

16. How, when, and where to communicate the concerns to the accused Interim measures Who to interview Order and timing of interviews Interview outlines Documents to collect in advance of interviews Establish estimated time line Organize the Rest of the Process

17. INTERVIEW THE ACCUSED

18. General Interview Tips

19. Do NOT take sides Do NOT make assumptions at the interview stage RemainNeutral

20. Who, What, Where, When, How Describe what happened Tell me what happened next Can you think of anything else important that happened that night TipsForGood Questions

21. 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 or do anything inappropriate toward her?” (sexual harassment is a legal term) INSTEAD: “Did you see him touch her?” MoreTips

22. The Accused Interview • First, explain the reason for the interview: • The purpose of the meeting is to let you there has been an accusation . . . • Assure the accused that a full, thorough investigation will be conducted before you reach any conclusions • Allow/require the accused to respond to allegations

23. Ask Appropriate Questions: Response to specific allegations Complainant’s motivations to falsely accuse Third parties who may have relevant information Witnesses Existence of physical evidence Discuss confidentiality and its limits Warn against retaliation and explain the employee’s right to raise a concern The Accused Interview

24. The Accused Interview Identify the accused’s relationship to the complainant: • “How long have you known each other?” • “Is the complainant your subordinate, co-worker, supervisor?” • “Any interaction outside of work?”

25. The Accused Interview • Gather more evidence: • “Are there any witnesses we should talk to about this?” • “Do you have any documentation (emails, personnel records) that would help us in the investigation?” • “Do you know anyone who would have that documentation?”

26. Don't You know it’s wrong to tell sexual jokes at work so why would you do that with Pam? Do Tell me about what happened between you and Pam by the water fountain on Monday.

27. Don't We know Pam is probably just doing this because of her bad performance review but you know we have to go through the motions of an investigation. Do If you think Pam is doing this because of her bad performance review, we will investigate it. Can you help us with any information that might support your thoughts about her motivations.

28. Company takes all complaints serious Company is conducting a thorough investigation Company will provide you with conclusions of the investigation Approximate time line No contact with others in investigation ClosingThe Interview

29. INTERVIEW WITNESSES

30. Whom to Interview • Interview anyone who has knowledge that will support or rebut the allegations • May be suggested by the complainant, accused, witnesses • Interview people who would have been in a position to hear or see relevant incidents

31. Ask Appropriate Questions What witness saw or heard What witness has been told by accused or complainant Other witnesses with information Open-ended questions Existence of physical evidence Discuss confidentiality carefully. Witness Interviews

32. WitnessInterviews Evaluate the quality of the witness’s information: • Is it first-hand knowledge? Hearsay? Gossip? • Example: • Witness says, “Michael hugged Pam yesterday.” • You should ask, “Did you see Michael hug Pam?” “Did someone else tell you Michael hugged Pam?” “Who told you about it?”

33. WitnessInterviews REASSURE the witness: • A witness may be reluctant to disclose everything • May be afraid of punishment from other workers, of awkwardness “You will not be retaliated against for anything you tell us”

34. DRAWING CONCLUSIONS

35. After follow-up interviews, the next step is to make credibility determinations. Look at the credibility of: The Complainant The Accused Witnesses Documents AssessCredibility

36. Does the interviewee have any reasons to lie? Is there “bad blood” between the interviewee and either the victim or the accused? Does the interviewee stand to gain from any disciplinary action against the accused? Motiveto Lie

37. Does the accused have a history or pattern of similar behavior? Are there previous complaints against the accuser? Have any witnesses noted similar behavior by the accused? PastBehavior

38. Alleged conduct did occur Alleged conduct did not occur Investigation is inconclusive PossibleConclusions

39. CLOSING THE LOOP

40. Closing the Loop • What should you do once you reach a conclusion? • Draft the investigation report • Inform the accused & complainant of the outcome • Take corrective action

41. The Report Do Not Include: • Legal Conclusions (Michael sexually harassed Pam) Include: • Facts discovered • Conclusions reached • Areas where findings were inconclusive

42. Communicate Findings

43. The conclusion(s) you reached and that you are taking appropriate action Any course of action that will affect him/her That the company encourages all reports of any misconduct That there will be no retaliation Tell the Complainant

44. Tell the Accused • The conclusion(s) reached • Corrective action, if any, • Reinforce applicable policies • That there will be no retaliation

45. Tell Witnesses Nothing unless they ask or there is a need to reinforce company policy.If asked, advise matter has been resolved and is confidential

46. Take Corrective Action

47. To stop the inappropriate conduct and ensure it does not recur To counter any adverse effects of on complaining employee (make them whole) Purpose

48. Examples • Inconclusive Memo • Oral / Written Reprimands • Reassignment • Demotion • Suspension • Counseling • Removal of Perks • Training • Hold on pay raise consideration • Termination