Conducting Workplace Investigations

1. Conducting Workplace Investigations Kris Ross and Jane Phillips North Carolina Community College System Office Paul Holscher Attorney, Jackson Lewis LLP

2. Why Investigate? • Affirmative Duty: An employer has an affirmative duty to investigate complaints of harassment or other alleged discriminatory conduct in the workplace. • Defense: If the employer properly investigates and takes prompt and remedial action, it may be able to protect itself from liability for the underlying harassment.

3. How might you be put on notice of a need to investigate? • Internal complaint (written or verbal) • Anonymous letter/ email • Observation • Exit interview • Complaint letter • EEOC Complaint • Lawsuit

4. Choose an Investigator • Neutral third party • Trustworthy and dependable • Fair, impartial, ability to be objective • Good oral/written communication skills • Can be outside the organization • Understands the investigation process and has good interviewing skills

5. Five Steps of the Investigation • Step 1 – Document and analyze the allegation • Step 2 – Plan the investigation • Step 3 – Conduct the investigation • Step 4 – Document the investigation • Step 5 – Conclude the investigation

6. Step 1 – Document the Allegation • Gather information about the allegation to determine whether the matter warrants a full investigation • May need more information from the complainant in order to make this decision • Consult with legal counsel to make them aware of the allegation

7. Document the Allegation • Who did something wrong? • What did they do (or fail to do) that constitutes the wrongdoing? • What specific policy may have been violated? (focus of investigation should be whether the conduct in question violated any organizational policy) • When, where, and how did it happen? • How is the person/college adversely affected by what happened?

8. Analyze the Allegation • Determine the course of action • The matter warrants a full investigation • The action occurred, but did not violate a policy • The issue can be resolved in another manner • Consider interim measures to calm things down • Notify the complainant that college is taking appropriate action

9. Step 2- Plan the Investigation • Prepare opening/ closing remarks • Purpose (nature) of the interview and investigator’s role • College’s policy on confidentiality • College’s policy on non-retaliation • College’s policy on being truthful during internal investigations (i.e. discipline can be imposed for failure to cooperate)

10. Step 3- Conduct the Investigation • Notify management • Gather information/evidence • Conduct interviews • Document the facts • Analyze the facts

11. Notify management • Ensure management knows you are conducting an investigation • Don’t promise confidentiality – explain it will be on a need-to-know basis • Remind all parties to refrain from discussing the investigation • Remind all involved about policy against retaliation

12. Gather information • Types of information you will gather • Statements • Documents (notes, calendars, emails, messages, etc.) • Physical evidence

13. Conduct Interviews • Choose the location • Keep in mind the physical factors • Choose appropriate location and room (outside normal work area) • Decide whether to record/ not record • Limit communication barriers • Control the physical factors • Minimize noise and interruptions

14. Interview Introduction • Introduce the investigator • Explain the purpose of the interview • Provide an overview of the process • Emphasize you seek only the facts • Remind not to discuss the investigation • Reiterate policy against retaliation • Ask employee to execute Rights/Responsibilities During Administrative Interviews

15. Rights/Responsibilities During Administrative Interviews • States that the purpose of the interview is to determine if misconduct or a violation of the organization’s policies and procedures has occurred. • Requires employee to answer all questions relating to their employment truthfully and completely. States that refusal to do so may result in discipline, up to and including dismissal. • States that the investigation and interview are confidential.

16. Interview Questions • Start with general open-ended questions: • Tell me about… • Describe the events… • What happened… • What else do I need to know…

17. Interview Questions • Move to more direct questions: • Ask specific questions to gather more information • Give interviewees the opportunity to clarify answers • Ask questions to fill in the gaps • Ask questions to help separate the facts from opinions • Make sure you have all the facts • Use who, what, when, where, why and how questions

18. Interview Cont’d • Document: make sure your notes are concise, clear, and complete; clear up any ambiguities with interviewees • Require specificity • Ask one question at a time and allow interviewee to completely answer each question before moving on to the next • Use a conversational tone • Keep an open mind • Let them do the talking- let each person tell their story

19. Interview: Complaining Employee • Get complaining employee to specificallydescribe objectionable conduct: • What was the conduct? • When did it first occur? (date, time, place) • Describe every incident of the conduct? • What did you say? How did you react? • Did you tell anyone? (who? when? where?) • Did anyone else witness the conduct?

20. Interview: Complaining Employee • Get complaining employee to identify details surrounding complaint. • When did you first complain? (who, what, when, where) • What did you say in initial complaint? • Any new allegations since the initial complaint? • Potentially ask- Why did so much time elapse before you made the complaint?

21. Interview: Witness • Inform employee that he/she has been identified as a witness. • Elicit general information regarding working environment. • Has alleged harasser ever treated you in an inappropriate manner? Did you report? Why/ why not? • Have you ever witnesses harasser treat any other employee in an inappropriate manner? (when? where? how? other witnesses?)

22. Interview: Witness • Review specific allegations with witness- - Did you see the incident(s) occur? - Exactly what did you see? - Did you discuss the incident with your co- worker? (if yes, when? where? what did she/he say?) - Did you discuss incident with the alleged harasser? (if yes, when, where, what did she/he say?)

23. Interview: Alleged Harasser • Explain specific allegations being made and ask alleged harasser to respond to them • If alleged harasser denies allegations, ask if he/she knows any reason why complaining employee has made them. • Firmly remind alleged harasser about policy against retaliation.

24. Interview: Closing • Summarize the interview to ensure accuracy • Review notes to clarify or add information • Ask additional questions if needed • Make sure questions have been fully answered • Ask interviewee if there is anything they think you should know • Thank the interviewee for cooperating • Remind interviewee regarding confidentiality and request that they not discuss the investigation

25. Common Investigation Problems • Refusal to comply - Attempt to establish rapport and explain the investigative process - Communicate organization’s policy regarding participation in internal investigations (requires employee’s cooperation) - Document any witness’ refusal to cooperate • Requests for other attendees at an interview • Emotional outbursts

26. Step 4- Document the Investigation • Investigation Report: can include the following: • Identify investigator • Summary of allegations • Finding of facts • Analysis and discussion of allegations • Conclusion • Recommendations (in some cases)

27. Characteristics of a Good Investigation Report • Tells a story • Stands alone • Complete, clear and logical • Proper style and tone • Summarizes allegations • Provides background information helpful to reader

28. Investigation Report • States the allegations • Chronological order • Begins with substantiated allegations and then the unsubstantiated allegations • Presents, analyzes and discusses the facts • States the facts supporting the allegation(s) and then the facts refuting the allegation(s) • If the facts are in dispute, state the complainant’s version and the respondent’s version

29. Purpose of the Investigation Report • Documents organization’s response to the complaint • Documents whether the allegations were substantiated or unsubstantiated • Organizes the information so that anyone can read and understand the report • Documents the findings in an impartial and accurate manner • Provides the basis for the resolution of the issues/allegations • Serves as a permanent record of the investigation • Provides a guide to remedial actions to correct deficiencies in the workplace

30. Typical Components of an Investigation File • Investigation Report • Log of investigator’s actions • Interview notes • Communications to/from witnesses (important if don’t cooperate) • Copies of complaints • Documents which help establish or refute the issues investigated

31. Step 5- Conclude the Investigation • Once the facts have been gathered as accurately as possible from the appropriate persons, the investigator should submit the investigative report and meet with the appropriate personnel (e.g. management, legal counsel) and discuss the investigation. • It is important to make a determination, even if the allegations are unfounded and even if discipline or corrective actions are not warranted. Attention!

32. Step 5- Conclude the Investigation • Whatever the investigation results: - Inform the complaining employee that his or her complaint has been investigated, a conclusion has been reached, and appropriate action has been taken. - Thank the employee for coming forward and advise him/ her that any future incidents or perceived harassment or retaliation should be reported immediately.

33. Step 5- Conclude the Investigation • Consider: - Disciplinary action - Potential training of management and employees - Potential revisions and/or additions to workplace policies (e.g. workplace romance policies, “love contracts”) • Any discipline imposed should depend on various factors including: (1) the severity of the conduct at issue, (2) whether previous incidents have occurred, and (3) whether any prior workplace issues with the harasser existed (employment history of harasser).

34. Additional Sources Equal Employment Opportunity Commission: http://www.eeoc.gov/laws/types/index.cfm Equal Employment Opportunity Commission : Retaliation Compliance Manual http://www.eeoc.gov/policy/docs/retal.html Jackson Lewis LLP http://www.jacksonlewis.com/home.php North Carolina General Assembly http://www.ncga.state.nc.us/ N.C. Department of Labor http://www.nclabor.com/

35. Did you learn anything? A Harassment Hypothetical

36. Harassment Hypo.: Touchy Tom • Ginny Gossip is a Maintenance Technician at Washington College. • Kate Kelly: is a Maintenance Technician at Washington College. • “Touchy” Tom Tate is the Director of Maintenance at Washington College and Ginny’s direct supervisor. • Jamie Jackson is the HR Director for Washington College. Jamie has just been made aware of the following email….

37. Harassment Hypo.: Touchy Tom Kate:Tom Tate has really gotten on my nerves lately ! As you know we went on a few dates awhile back, but aren’t seeing each other anymore (Tom isn’t my type). Several weeks ago I mentioned that my back was hurting and Tom asked me if I wanted a back rub. I said “no,” but Tom insisted and massaged my shoulders for a few minutes. It made me feel uncomfortable (I clearly know now why his nickname is “Touchy Tom”). During the massage Tom whispered in my ear that I had nice shoulders…

38. Harassment Hypo.: Touchy Tom …Tom has made several other back rub offers since we stopped dating, which I accepted b/c I had to (after all he’s my boss you know!). I finally put my foot down and told Tom no more back rubs. Nevertheless, Tom offered me another back rub the other day, which I had to suffer though. Jake and John both heard Tom ask me, but left before I begrudgingly said “I guess so, but this has to be the last one….”

39. Harassment Hypo.: Touchy Tom … Tom’s requests have made work so stressful! Even though I told him I wasn’t interested Tom keeps asking me out on dates. Also, Tom recently gave me a written warning for being late (by 5 minutes last Friday!). I have been a few minutes late before and wasn’t disciplined. Both Jake and John were late the other day and didn’t get any written warnings! I wish Tom would stop being a “SSOB” (“Boss” spelled backwards), you know? Ginny

40. 10 Issues for Washington College • Has Washington College’s duty to investigate been triggered by • Ginny’s email? What if the complaint had been made orally? Outside the office? By Jake or John? By someone else? • Should Jamie require that an • investigation be completed?

41. 10 Issues For Washington College • Prior to conducting an investigation, should any • interim measures be implemented? Why/ why not? • 4. What allegations should the investigation involve/ include? • If the allegations regarding Tom’s back rubs, whispering in Ginny’s ear, and the written warning are all true, has Tom’s behavior violated any workplace policies? 6. Which one(s)?

42. 10 Issues For Washington College • 7. Who should be interviewed as part of the • investigation conducted by Washington College? • 8. What if Tom refuses to be interviewed? What • if Ginny refuses to be interviewed? • 9. What if Ginny requests that her attorney be present • during her interview? • What if Ginny requests a copy of the investigation report?

43. Harassment Hypo.Follow-up • Ike the investigator completes his investigation. Ike’s report states that Ginny actually requested the back rubs and the written warning issued to her for being late was warranted. Ike thus concludes that Ginny’s complaint is unsubstantiated and without merit. Ike also concludes that Ginny was untruthful during the investigation. • However, during the investigation Tom admits that he recently issued Ginny a second written warning because she made the email complaint to HR. • What legal issues arise under this scenario?

44. Harassment Hypo. Relevant Personnal Policies • Equal employment opportunity • Anti-discrimination • Anti-retaliation • Sexual harassment • Discipline Policy • Grievance procedure

45. Questions??? • Kris Ross and Jane Phillips • North Carolina Community College • System Office • Paul Holscher • Attorney, Jackson Lewis LLP • (919) 424-812; paul.holscher@jacksonlewis.com