Planning the Investigation - Amazon Web Services · Web viewor “do you know why I’m talking...

DOCUMENTING WORKPLACE INVESTIGATIONSAN INNOVATIVE APPROACH TO ADDRESSING WORKPLACE COMPLAINTS &

REDUCING WORKPLACE CONFLICT

By Kathy Perkins, Kathy Perkins LLC

Daniel Kaplan and Krista Sterken, Foley & Lardner LLP

NOTE: THESE MATERIALS PROVIDE A DISCUSSION OF WORKPLACE INVESTIGATIONS FOR GENERAL GUIDANCE INTENDED TO BE USED IN CONJUNCTION WITH A TRAINING PROGRAM. IT SHOULD NOT BE RELIED UPON AS LEGAL ADVICE IN ANY PARTICULAR SITUATION. ALWAYS CONSULT AN ATTORNEY FOR A LEGAL OPINION APPLICABLE TO SPECIFIC FACTS.

INTRODUCTION

Defending against discrimination and harassment claims is always a challenge for employers. Some of those challenges are inherent and unavoidable, such as the “he said/she said” highly subjective evidence the employer is required to evaluate, interpret and address. But there are avoidable pitfalls in discrimination and harassment litigation related to poor documentation, including failure to document complaint handling or an investigation, stray remarks on the documentation, inability to show whether or how other complaints were investigated, etc.

This article will address turning investigation documentation from a potentially expensive liability into a plus. By having a policy of carefully and consistently keeping records of all investigations, the employer has business records that will be admissible to establish a consistent and thorough practice of timely investigation of employee complaints, including those involving or potentially involving illegal discrimination or harassment. Solid documentation can aid in showing, for example, that the employee did not initially complain about all the conduct at issue in the litigation; or that there were no other employees who ever complained about this particular supervisor. The hearsay exceptions to the Federal Rules of Evidence (803(6) & (7)) provide a basis for admissibility of business records and the absence of entries into business records.

An effective discrimination and harassment prevention program can have tremendous benefits beyond reducing the risk of litigation. Even when workplace conflict doesn’t rise to the level of an illegal discrimination or harassment lawsuit, it costs organizations in time, energy and creativity. In one study of 1600 employees1:

22% said they actually decreased their work efforts because of conflict; Over 50% reported that they lost work time because they worried about whether

the instigator of the conflict would do it again; 12% reported they changed jobs to get away from the instigator of the conflict.

1 Karl A. Slaikeu and Ralph H. Hasson, Controlling the Costs of Conflict, Jossey Bass, 1998.

© 2016 Kathy Perkins LLC and Foley & Lardner LLP 4840-1326-8782.1

Early intervention into employee disputes offers a greater opportunity to resolve differences before the conflict grows into a discrimination,harassment, or hostile working environment claim. But there are a lot of reasons employers are reluctant to get involved early on – fear of making things worse; too busy; belief that employees will (or should) resolve issues on their own; don’t like conflict; not sure how to get started; not really their business; etc.

With a broad issue investigation program, employers have a routine way of addressing conflict early, which will be of particular help in these days of heightened awareness of bullying and increased stealth opportunities for employees to behave badly through social networking and electronic communications.

DEVELOPING AN ISSUE INVESTIGATION PROGRAM

Traditional advice for employers aiming to reduce the risk of discrimination and harassment claims is to:

Adopt and communicate a written policy against discrimination and harassment with a complaint reporting procedure and protection against retaliation;

Train supervisors regarding their responsibilities; Educate the workforce about appropriate workplace behavior and how to report; Promptly investigate all complaints; and Take appropriate corrective action.

This is great, legally compliant, advice. But years of representing employers in discrimination and harassment litigation have led to the recommendation of this expanded, broadened Issue Investigation Program. Problems prompting: employer didn’t recognize that an employee dispute would grow into discrimination or harassment; poor record-keeping; lack of consistency in investigation scope and procedures; poor investigatory skills; poor documentation coupled with less than perfect memories; employees excused for not reporting because they didn’t believe it would do any good; or so many missed opportunities to have jumped in and fixed a conflict early on.

Employers may be concerned about creating documentation that tends to show a lot of “problems” or issues in the workplace. However, the benefits of being able to show a solid investigation program, including promptly addressing issues big and small can outweigh the liabilities. Additionally, such documentation can be used to “prove a negative” – that the employer has not had numerous types of employee complaints, that no one had complained about a particular employee before, etc.

Keys to the Issue Investigation Program are:

Broad Policy – An employer that is serious about creating a more appropriate, respectful workplace and addressing bullying and other juvenile behavior that may not


meet the standard of illegal discrimination or harassment should develop a broad policy such as:

“We expect that our employees treat each other, and those with whom they come into contact, with courtesy, respect and professionalism; and that they work cooperatively and constructively in resolving issues or problems. If you have a complaint regarding co-worker or other conduct, we can only assist if it is brought to our attention.”

Investigate ALL Complaints – Before groaning that you’re already overworked, this means an investigation tailored to the complaint. Many – perhaps most – employee complaints can be addressed in just one meeting. With practice, it will become easier and the benefits will be enormous. Remember, though, that a “complaint” can be anything from a formal, written submission to a casual, off-handed mention. Especially if the substance of the communication is the employee’s perception of discrimination or harassment, it must be investigated even if communicated informally.

Consistently Document – A key is developing a system that works in the context of your organization. Maybe it’s an electronic record that ties into other company software. Maybe it’s all done on paper. But create forms that are used and applied in all circumstances from the smallest of gripes to the most dangerous of claims.


THE INITIAL MEETING WITH THE EMPLOYEE

Consistent documentation is key. A sample Issue Intake Form is Attachment A and contains sections for the information that should be collected and recorded in every such meeting. Let the employee see that you’re filling out a form with the information – this will help build HR credibility that you do consistently investigate and follow through. Welcome the employee and listen receptively. If you have a conflict that prevents your attention, make an appointment at the next available time (but be careful to balance priorities – if this is a high-stakes discrimination or harassment complaint or a volatile situation you may need to reschedule your own event). Let the employee articulate his or her concern and take careful notes. Ask the employee what resolution he/she is seeking. You’re going to figure out fairly quickly if this is a matter that can be resolved immediately – such as fixing a problem with vacation time having been improperly deducted – or whether it is going to require further research. If there’s an easy fix, note the resolution and outline any additional steps needed to complete the process. Send the employee an email describing the resolution and attach a copy to the intake form


along with any response from the employee. Add the issue to an Employee Issue Log such as the sample which is Attachment B.

If the issue involves conflict with a coworker of any type, don’t try to conduct a complete interview in this initial meeting. Avoid coming to conclusions or making promises about what’s going to happen. Consider whether there need to be some immediate interim steps such as separating employees and how that might be done without any sense of retaliation against the employee bringing the issue forward. Have a frank discussion about confidentiality (you’ll keep it as confidential as possible and the employee should do so as well, but be sure to explain why confidentiality from the employee is needed). Bear in mind, however, that the National Labor Relations Board (“NLRB”) has taken a very strict position against requiring confidentiality for employees unless the employer can show a legitimate and serious need for such confidentiality. One way to address this burgeoning area of the law is to avoid blanket confidentiality policies and instead conduct a case-by-case analysis of the need for confidentiality in any specific situation.

Schedule the next meeting with the employee or at least the next contact. It’s important not to have the employee leave your office wondering what’s going to happen next. If the issue brought forward is highly volatile or may involve illegal discrimination or harassment, the investigation should proceed with high priority.

PLANNING THE INVESTIGATION

Who Should Conduct The Investigation?

Most issues brought to the attention of HR will be investigated by a member of the HR Department. You are familiar with the company, employees, culture and have ready access to most relevant records. Consider having a different investigator if:

there is no capacity within HR to take the time necessary to do a timely investigation;

under the circumstances, HR is not – or may not seem to be – objective; the individual(s) complained about are high level executives and HR would

not have the power or authority to discipline or address concerns if the investigation shows that needs to be done; or

you want to conduct the investigation confidentially under attorney-client privilege.

If the organization has in-house legal counsel, they should be consulted at the planning stage of any investigation that raises possible claims of illegal discrimination, harassment, or retaliation. The in-house company attorney may conduct the investigation with greater advantages than the HR staff. For example, an attorney may be able to maintain an investigation under the protection of attorney-client privilege, but it is important to keep open the possibility that the privilege will need to be waived if there’s a claim made and the company needs to show it did investigate. Also be aware


that if the attorney is also providing legal advice regarding how the complaint will be addressed, it may be difficult separating that confidential advice from the investigation itself.

When the stakes are high and the need for objectivity is great, consider retaining an outside investigator, either an attorney or non-attorney, depending on the circumstances. Cost may be a factor, as is the need to preserve the option of a privileged investigation. It is extremely important to select an experienced, savvy investigator who will limit the inquiry into the issue presented and provide results and recommendations that are practical, in a way that doesn’t subject the company to greater liability than the facts and conclusions would warrant.

Begin Drafting the Report

You will want to develop a plan for the investigation consistent with the scope and nature of the complaint. It will be important to maintain flexibility because it isn’t possible to anticipate what all the documents will show or witnesses will say. A sample Report Form is Attachment C. Drafting the report from the outset helps to formulate a clear idea of what documents and interviews you’ll need to review in order to come to conclusions about the issue, understanding that the report document and even the direction may change as the investigation proceeds. This method has the advantage that once the investigation is concluded, most of a report exists and doesn’t need to be prepared from scratch. Note that the Report Form is initially drafted for presentation to either in-house or outside counsel. This will allow the report to be maintained as privileged until such time as it is finalized and then the “To” line can be removed. This is especially important in the early draft stages. Always try to use the same version or report until it can be finalized (beware of automatic version updates, etc.).

Start by identifying the key points of the employee’s complaint and then ask what facts you need to have to decide if the point is correct or incorrect or whether or not action needs to be taken. In most cases you will want to review the personnel files (and supervisor’s files) of the employee raising the concern and any alleged discriminator or harasser. There may be other helpful documents that are apparent at the outset. You should conduct a more detailed interview of the complaining employee and will also need to interview the alleged perpetrator. There may be other obvious witnesses, depending on the circumstances. Management level employees who work closely with the individuals may also be useful to talk to, at least to get background information.

Always keep in mind the importance of preventing the investigation from creating greater problems, such as those presented by rumors, employees taking sides based on incomplete information, etc. This suggests involving as few people as possible while still getting adequate information to make a decision.


Identify Decision-Makers

Depending on the size and scope of the investigation, there may be managers in addition to the investigator who will be involved in coming to conclusions based on the evidence or determining the consequences if policy violations are found. This may be the manager of the individual complained about, HR Director or someone higher up.

CONDUCTING THE INVESTIGATION

Follow your plan with flexibility. Review obvious documents before interviewing the complaining employee so the investigation can be as focused as possible, reducing the need to come back and ask more questions. If you’ve looked at the documents you’ll be in a better position to assess credibility as well. List the documents reviewed on the report as you go along.

Interview Preparation

Using an interview form or cover sheet (Attachment D) is helpful so that you remember to caution the witness about retaliation, relevant company policies, etc. You will also have a record that you said these things since most people don’t tend to take notes about what they said. You should note the date, time and duration (or end time) of the interview. As with the Report Form, the Interview Form should be initially directed to counsel to maintain privilege until the investigation is complete. This is also true for all of your investigation and interview notes: start out with an “attorney-client” or “attorney work product” or “To – [name of attorney]” until you (and anyone else that needs to be involved in this decision) have decided that the investigation notes and interviews can be “released” from privilege status – typically at the conclusion of the investigation.

Think in advance about confidentiality. In its 2012 Banner Health System decision, the NLRB held that it is a violation of NLRA § 7 for an HR manager to ask employees not to discuss a matter under investigation with her co-workers. The Board found it was the employer’s burden to show a legitimate business justification, which could include:

particular witness needed protection; evidence in danger of being destroyed; testimony in danger of being fabricated; or need to prevent a cover-up.

If a confidentiality instruction is justified, then the reasons should be documented. This must be a case-by-case analysis – it is not adequate to simply have a blanket policy that all investigations must be kept confidential by employees.

Have a list of topics to cover, but not specific questions, because they tend to be too limiting. Focus on what you need to know in order to come to a conclusion about


the issues you are investigating. Think about whether it would be useful to have documents with you to show to the witness – maybe after an initial-open ended question.

Consider in advance whether you want to try to get employees to write or sign written statements. This could be useful if you have concerns about an employee changing their story later. However, often this step is not necessary, raises the employee’s anxiety level and can tend to narrow the information gathered. Moreover, according to a December 2012, NLRB decision (American Baptist Homes of the West) in union workforces, witness statements obtained by employers in workplace investigations under promises of confidentiality no longer may be routinely withheld in responding to union requests for information. Now, the rule is that if requested by the union, witness statements must be disclosed unless the employer establishes legitimate and substantial confidentiality interests, separate from any promise of confidentiality to the employee, such as an actual showing that the individual giving the statement is likely to suffer union harassment. Also, the employer must always bargain with the union over whether there is another way to provide the information that meets the employer's confidentiality concerns.

Go into each interview with an open and curious mind. You’re putting together pieces of a puzzle.

Although we will provide more detail on this in a minute, your notes of each interview should reflect the facts and information provided by the interviewee, not your impression of whether the interviewee’s rendition is truthful or accurate. Think of yourself as Sergeant Joe Friday from Dragnet, who was credited (incorrectly) with this well-known catchphrase when conducting investigations: “Just the facts, ma’am. Just the facts.”

Interviewing the Complaining Employee

Thank employee for coming forward, explain Company takes concerns seriously, will conduct a thorough investigation before reaching any conclusions and that he or she will not be retaliated against for making the complaint.

Elicit specific details regarding the conduct complained about. Start with broad open-ended questions and then narrow down. Include questions regarding such issues as:

the type of conduct, the frequency of the conduct, what was said or done, where it occurred, where the complainant was touched, the dates that the conduct occurred,


the time period over which the conduct occurred, and – whether or not there was a pattern of previous episodes.

Get the specific context in which the conduct occurred, including the nature and general description of the work area and the specific location. Think “who, what, when, where, and why.”

Identify and obtain any physical (including electronic) evidence, such as email, recordings of any nature, documents or objects.

Identify all potential witnesses. Was anyone else present – did anyone overhear the statements or comments?

Ask how the employee responded.

Determine the effect of the conduct on the complainant.

Were others treated similarly?

History of issues or conflict?

What does the employee think motivated the conduct complained about?

How does the employee want the situation resolved?

Let the complainant know when to expect you to make the next contact, and do so even if you have nothing yet to report.

Make no editorial comments or imply any conclusions or impression and make no promises except as to process.

Interviewing Employee Complained About

Explain the purpose of the interview/investigation, and explain that no decision has been made as to the truthfulness of the allegations.

Depending on the circumstances, may need to allow a representative; however, you need not allow any outside attorney to participate - EVER.

Identify the complainant and the specific allegations (in most instances – there may be circumstances where there is a need for partial confidentiality.)

If the complaint involves sexual harassment, determine whether there was any prior consensual relationship between the parties? How long have the parties


known each other? Was there a history of group or individual socializing? Ask if the accused believed the conduct was welcomed and why? However, be careful not to seem as if any of this would necessarily “excuse” the alleged harassment.

Determine whether the accused directed or had responsibility for the work of other employees or the complainant, had authority to recommend employment decisions affecting others, or was responsible for the maintenance or administration of the records of others.

Ask for the names of witnesses to corroborate the statements of the accused, or who may have overheard or observed any of the alleged conduct or statements.

Review policy against discrimination and harassment (or other relevant policies).

Warn the accused that the complainant is not to be retaliated against and that any approaches by the accused to the complainant may be perceived as retaliatory. Subject to Banner Health, you may also caution that efforts to perform an investigation on his or her own or other discussions about the complaint at the workplace (other than with the investigator) will be subject to disciplinary action up to and including termination separate and apart from the results of the investigation.

Give the accused an estimated time frame and a date for the next contact.

Interviewing Other Witnesses

Try to elicit from witnesses the identity of the complainant and the accused as opposed to identifying them to the witness. For example: "have you observed any conduct that you would consider sexual harassment?" or “do you know why I’m talking with you today?”

Assure all witnesses that their cooperation is important, the information they provide will be kept confidential to the extent possible consistent with the company’s obligations to investigate and take corrective action, and that they will not be retaliated against for responding to questions or providing information.

Warn all witnesses against gossiping about the complaint. Suggest they avoid guessing the full nature of the complaint or underlying issues based on your questions. Being careful to comply with Banner Health, you may have justification to require confidentiality or alternatively, discuss how they would wish their own complaint to be treated.

There’s nothing wrong with asking about rumors or gossip but give the information appropriate weight.


Document Review and Additional Interviews

After the interviews, work on the report to record facts you believe to be true either because you have consistent witness reports or documentary support. Identify additional documents that might help you come to more conclusions, or missing pieces from witnesses such that you need to go back to witnesses you’ve already spoken to or interview additional employees.

Utilize in-house or outside counsel or other decision-makers as sounding boards as you assess the credibility of the witnesses and come to conclusions about the facts. If the complaint may involve illegal discrimination or harassment, it’s a good idea to consult with an attorney under the protection of the attorney-client privilege.

CONCLUDING THE INVESTIGATION

You can use the structure of the Report Form to help organize your investigation and come to conclusions. It is useful to separate facts from conclusions with the factual findings being items that are background and/or generally not questioned. Conclusions may include credibility judgments you have made. It is not necessary to have absolute certainty in order to reach a conclusion – but you should have a good faith, reasonable belief.

Determining Appropriate Response to Complaint

The employer’s goals are to effectively stop inappropriate behavior (if any), continue to ensure no retaliation against the complainant and maintain credibility of the employer’s response to complaints and commitment to the policy.

If the employer finds there was inappropriate behavior that might constitute discrimination or harassment (or the results are inconclusive), the response could include any of the following, or a combination: review of the Company’s policies and expectations; suspension (of full week if exempt employee); demotion; transfer away from complainant; final written warning; individualized training; and/or termination.

But, don’t leave the employee who complained dangling. Even though it may not be appropriate to communicate the entire employer response (such as specifics of disciplinary action), the employee should be made to feel comfortable for coming forward, and as if the Company has taken his/her claim seriously.


If the complaint or issue arose from a conflict between employees, consider what steps might help the employees work through the situation, such as mediation, facilitated discussion or EAP referral.

It is possible that you may ultimately conclude that not only was the complaint untrue, but it was made with the knowledge that it was untrue. An employer may discipline an employee for making a false complaint, but this can be very risky because it can look like retaliation for making the complaint. Before disciplining for a false complaint, make sure that you can prove that the complaint was both objectively untrue and that the complainant knew his or her complaint was untrue when he or she made it.

Finalize the Documentation

The best time to organize and finalize all the paperwork you have created and developed in the investigation is immediately when it is concluded. The best documentation is typically contemporaneously created documentation. Complete the log. File the Intake Form with the Report. Include copies of documentation showing corrective action taken if appropriate. At this time, you can also eliminate the “To” statement at the top of the report, notes and interview forms (assuming these are final, and that a waiver of the attorney-client privilege is desired).

Follow-Up

Depending on the circumstances, it may be important to check back in with the employee who complained periodically to make sure things are going well and there’s no sense of retaliation. This can be done with an open ended “how’s it going? Anything I need to be aware of”. But then document the conversation.


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