Two Troublesome Employment Concerns

1. Metro Bureau Tuesday, October 1, 2013 Two Troublesome Employment Concerns Presenters: Robert T. Schindler / Kevin T. Sutton Lusk & Albertson PLC Handling Employee Claims of Harassment and Responding to Employee Criminal Convictions Want to download this presentation? Do it now: www.luskalbertson.com/metro-bureau

2. Distribution of Topics Handling Employee Claims of Harassment Kevin T. Sutton Responding to Criminal Convictions Robert T. Schindler

3. Handling Employee Claims of Harassment

4. Topics to be Covered … • What is harassment? • What are the standards for conduct? • When does liability attach? • When does duty to investigate arise? • What is the purpose of the investigation? • What issues require investigation? • Who should investigate? • How do you prepare for the investigation? • What are the issues to consider? • What are the mechanics of the investigation? • How do you conduct an effective interview? • How do you best document investigation? • How best to render justice? • Any further action to be taken?

5. What is Harassment? • Federal and State Laws • Title VII/ADEA • ELCRA • District Policies • Protected categories of individuals • Race • Color • Sex (quid pro quo; hostile work environment) • Religion • National Origin • Age • Evolving areas of harassment • Gender identity • Transgendered

6. Employer Liability for Supervisor Harassment • Michigan • Employer liable if knew of or should have known of harassment and took no prompt remedial action • Federal • Look to employer’s knowledge, if action taken, and if harassment resulted in “tangible employment action” • Vance v. Ball State University, 133 S. Ct. 2434 (2013)

7. Avoiding Liability • Explicit Policy Against Harassment • Definition of Harassment • Reporting Procedure • Confidentiality Assurance • Disseminate • Acknowledgment of Receipt • Post Policy • Inform and Train • Investigate Claims • Develop Positive “Track Record” • Be Consistent

8. The Complaint: Hypothetical Kendall, an elementary school principal, tells the District’s Business Director that she thinks Garrett, a high school principal, has violated the school district’s policy prohibiting sexual harassment. When the Business Director asks for details, Kendall says she does not want to get Garrett in trouble and that she did not want to make a “formal complaint.” The Business Director calls the Director of HR. What should the Director of HR do? 1. Ignore Kendall’s statement because she did not make a formal complaint. 2. Talk to Kendall and see if she wants to make a formal complaint. 3. Investigate.

9. When to Investigate? • A formal (or informal) complaint • Co-worker reports of questionable conduct (even if not wanting to become involved or reported anonymously) • Observed or reported employee or student misconduct including violation of workplace rules or student code of conduct • Parent or student complaints (use caution) • Anonymous complaints

10. Most Common Circumstances Besides Discrimination and Harassment • Bullying • Corporal punishment by staff against students prohibited • Theft or embezzlement • Improper use of e-mail, Facebook, child pornography, etc. • Workplace misconduct (jokes, comments, etc.)

11. Why Investigate? • Gather facts and evidence • Informed decision-making • Adhere to due process requirements for student(s) and staff; adhere to district policy • Create a record of activity • Occurrence / Response • Establish expectations for behavior • Show misconduct will be taken seriously • Be your attorney’s best friend! • Document for future proceedings • Avoid liability

12. Preparing to Investigate • Decide if internal or external (consult Legal) • Investigate promptly • “Act quickly, but not hastily” • Review: • all applicable policies • allegations • relevant personnel files • Understand what evidence is relevant and necessary (ask Legal) • Ensure retention of evidence – documents, electronic records, physical evidence, video surveillance

13. Issues to Consider Before You Start • Union representation • Attorney representation • Confidentiality: interference with protected rights as to employees • Electronic communications • Issues associated with searches

14. Conducting Interviews • Prepare open-ended, unbiased questions • Take steps to assure that the witness understands the question you are asking and answers the question you are asking • Press for answers • Order of interviews: • Interview complainant and/or victim • Interview the accused • Interview other witnesses identified by the complainant, accused or other witnesses • Re-interview witnesses if necessary • Take copious/verbatim notes • Consider signed statements

15. The Reluctant Witness You have identified Kennedy as a possible witness. She has been disciplined several times by the District and is on an IDP. When you begin to interview Kennedy, she says she will refuse to answer any questions and will not cooperate with the investigation. What do you do? 1. Order her to give you the information and discipline her if she does not cooperate 2. Decide you can’t force her to cooperate

16. The Reluctant Witness • If witness is uncooperative • Concern about how it will look to peers • Uncomfortable and afraid of repercussions • Desire to be liked • Try to determine reason for lack of cooperation • Provide reassurance about how to handle actual or perceived retaliation • Give names and numbers of who to contact if retaliation is suspected • Tell them what you know or think you know • Order the employee to cooperate

17. Uncooperative Accused • Encourage participation by explaining the investigation process, answering any questions the accused has • An employee can be compelled to cooperate in an investigation and it is appropriate to discipline employees who refuse to cooperate

18. “I Want My Attorney” You bring Jude in for an interview and he requests his attorney. He refuses to discuss anything until his right to counsel is honored. What to do? Let him call his attorney and wait until the attorney arrives 2. Tell Jude that he is not entitled to an attorney and that if he will not answer questions then the investigation will continue without his input

19. “I Want My Attorney” - Response • Two schools of thought • OK, call your guy • No way, Jude • “Would your answers be any different with your attorney here?” • Attorney can’t speak • Asking for attorney different than asking for union representative • If the employee is represented by a union, the employee has Weingarten rights which allow the employee to have his/her “union” representative present while the employee is being questioned on a matter that may result in discipline

20. An Employee’sWeingartenRights“An employee is entitled to have a representative present at an investigatory interview by an employer if the employee reasonably believes that disciplinary action might result.”

21. Do Employees Have to Ask For a Weingarten Rep? Informing Employee of Predetermined Discipline Does the Weingarten Rep Have To Be a Union Steward? What If the Employee’s Chosen Rep is Unavailable? The Role of the Weingarten Rep An Employer Has Three Choices When An Employee Invokes His Weingarten Rights CBA Terms and Weingarten Rights Weingarten Rights

22. Caution While Interviewing • Overbearing investigations and confining or restraining employees or students against their will places the employer at risk for lawsuits • False imprisonment • Intentional infliction of emotional distress • Factors to determine when an interview exceeds permissible limits: • The time and conditions under which the questioning took place • The content and form of the questions put to the witness • The physical and mental condition of the witness during the period during which s/he was questioned • Consider breaks, even those to consult with attorney; be reasonable

23. Confidentiality • When interviewing, always ask the witnesses to treat the information discussed during the interview as confidential • Explain why confidentiality is necessary • Explain that the information provided during the interview will be shared on a need-to-know basis and not necessarily held in strict confidence • Disclosure by management is sometimes needed for the investigation • State any policy prohibiting retaliation (if applicable) • Examples

24. Workplace Searches You believe that Gray, a chemistry teacher, has documents in his desk which are relevant to the allegations that have been made against him by a fellow teacher. You also believe there are e-mails on Gray’s email account which may also be relevant to the allegations. Gray keeps his desk locked and has changed the password on his computer. What should you do? 1. You cannot search because Gray, by locking his desk and changing his password, has created an expectation of privacy 2. You can go to court and obtain an order which lets you search his desk and email 3. The desk and emails are owned by the District and you can search them without Gray’s permission

25. Workplace Searches (cont) • Analyze and evaluate the legitimate reason for the intrusion • Review and analyze the nature, scope and intent of the intrusion • Take the less intrusive way to effectuate the search (intruding conduct should not exceed the legitimate scope of intrusion) • Provide clear and specific notice to employees of District’s policies regarding screening, monitoring, and investigating employee conduct • District notice in writing that District will conduct certain types of inspections significantly diminishes the expectation of privacy • Obtain employee or student consent in sign offs for policies • Obtain consent at the time of the search

26. Searching Computers/Electronics • Investigating computer activity is often essential; factors in determining an employee’s expectation of privacy on his/her work computer include: • Whether the employer/district maintains a policy banning objectionable use • Whether the employer/district actually monitors the use of the employee’s computer activities • Whether third parties (such as IT Departments) have the right of access to the student or employee’s computer • Whether the employer/district placed the employee or student on notice, or the employee/student was aware of the monitoring policies • Employers should obtain consent, either through acknowledgment or notification

27. Documentation • Use exact words • Contact • Follow-up as much as needed • Create a separate file for the investigation • The file should include all documents and other information gathered during the investigation

28. Determination • Review all of the evidence, including witness interviews • If necessary, follow up with additional interviews or other activity needed to conduct an adequate investigation • Consider and weigh all the evidence • If evidence conflicts, assess credibility • Report should document assessment of credibility and what supports your finding

29. Decision • You find the complaint is true/supported • Take appropriate disciplinary action against the accused • Tell the complainant to report any retaliation • You find that the complaint is false/unsupported • If appropriate, take disciplinary actions against the complainant** • Warn the accused of the no retaliation rule • You can’t decide whether the complaint is true/supported or not • Educate the accused and warn against retaliation • Tell the complainant to report any retaliation

30. The Investigation Report • Is a written report needed or will a verbal report be sufficient? • Will report (whether written or verbal) provide the facts with conclusions or will recommendations be included? • If a formal report is needed, the report should include: • Background information • An explanation of the situation prompting the investigation • How the investigation was carried out • Witnesses interviewed • Documentary evidence reviewed • Attach significant documents to report

31. Writing Your Report • Think about your audience when writing your report • Edit and proof your report from the perspective of someone with no knowledge of the event • Better yet, have someone with no knowledge read and see if it is clear (confidentiality) • Decide how you are going to refer to your witnesses and then refer to them in the exact same way throughout the report • Will the report be Exhibit A in litigation?

32. Discipline • Did the District have a rule? • Did the District let the employees / students know of the rule? • Did the accused violate the rule? • Was the investigation fair? • How has the District treated other employees who violated this rule in the past? • Did the discipline fit the offense?

33. Remedies • Determine what, if any, corrective action or remedial measures are necessary • Always consider polices and practices • If issuing corrective action, remember purpose of such action: • Correct future conduct • Communicate to employees what is acceptable conduct • Minimize exposure to future liability for alleged harassment/discrimination

34. Consider Additional Actions • Report to the School Board • Report to outside authorities • If attorney conducted investigation and prepared report, recommendation can be legal advice and it can be rendered in closed session • Witness statements and non-privileged statements may be subject to FOIA • Disciplinary hearings and appeals for employees

35. Employee Rights in Discipline Context • Weingarten Rights (previously discussed) • Loudermill Rights • Also … • Rights under Teacher’s Tenure Act • Public Employee Relations Act (PERA)

36. Loudermill Rights • “The employee is entitled to oral or written notice of the charges against him (or her), an explanation of the employer’s evidence, and an opportunity to present his (or her) side of the story” • Employer has an obligation to inform the employee of his/her Loudermill Rights • The employee has the right to speak or not to speak at the Loudermill (or “pre-disciplinary”) hearing. Also, the employee has a right to union representation, and the union representative may speak on behalf of the employee • If the employee chooses not to attend the Loudermill (or “pre-disciplinary”) hearing, the employer may proceed with discipline

37. Modifications to TTA and PERA • Changes are numerous • Transition from “Just & Reasonable Cause” to “Arbitrary & Capricious” • Can discipline up to 15 days without TTA implications • A discussion for another day …

38. Key Take-Aways • Have a plan for investigation • DOCUMENT!!!!! (even if no investigation) • Provide opportunity for employee to respond to allegations/situation • Consult with HR • Don’t leave situations unresolved

39. Case study – “That Ship Has Sailed” • 2011-2012 SY • Special education teacher, elementary • Issues of concern raised by parent (Jan. 2012) • Questionable conduct witnessed by other staff (Oct. 2011; Nov. 2011) – man-handling SE child • Response • Spoke to teacher • Never documented issue; no letter in file • No investigation; no interviews of witnesses • Previously-reluctant parent now on a mission • Teacher suspended (March 2012) • Investigation requested; “can we fire her?”

40. Investigation Ensues • 12 individuals interviewed • No explanation why prior issues not documented • Excuses Provided: • Felt issue was covered by chat with teacher • Parent seemed less-than-concerned … initially • Wanted to come down on teacher now that parent was upset • Teacher countered by insisting this was parent-driven and unfair

41. Investigation Results • 222 page report • Can we fire her? You decide …

42. Case Study Lessons • Initial incident should have been investigated more thoroughly • Interviews should have been done, statements obtained, and (likely) discipline issued • Documentation of that incident would have made it easier to penalize teacher for additional bad conduct • Discipline for that issue would have made it easier to severely discipline teacher for additional bad conduct • Level of parental rage is not the guide! • Be thorough all the time!! • “That ship has sailed …”

43. Question Time

44. Additional Questions? Kevin T. Sutton 40950 Woodward, Suite 350 Bloomfield Hills, MI 48304-5129 Direct: (248) 988-5695 Cell: (734) 377-7400 Email: KSutton@LuskAlbertson.com

45. Responding to Criminal Convictions

46. What Will Be Covered? • Student Safety Initiative (SSI) • What does it require? • What does it allow? • Interaction Between SSI and the TTA • EEOC Enforcement Guidance • How may criminal convictions be used in employment decisions under federal law • A practical application of the law

47. Student Safety Initiative • MCL 380.1230 et seq. • Group of acts that amended or added to the Michigan Revised School Code • Effective Jan. 1, 2006 • Sought to modernize public school background check process • Went from paper to electronic fingerprints • Includes check from State Police and the FBI • Required all current employees to be re-checked

48. Who Must Receive Background Check? • Any individual in any full-time or part-time employment – Upon offer of initial employment • Any individual being assigned to regularly and continuously work under contract in any of its schools – As soon as school is aware • Volunteers? • Substitutes – May rely on the check possessed by another employing entity

49. Regularly and Continuously • To work at school on a more than intermittent or sporadic basis. • Intermittent: stopping or ceasing for a time; alternately ceasing and beginning again • Sporadic: appearing or happening at irregular intervals in time

50. What if Criminal History? • If the report discloses that an individual has been convicted of a listed offense, then the school district … shall take steps to verify that information using public records and, if the information is verified, shall not employ the individual in any capacity . . . and shall not allow the individual to regularly and continuously work under contract in any of its schools. MCL 380.1230(9) and 380.1230a(10).