PROGRAM AGENDA

January 15, 2019 8:30am ….. WELCOME— Monty Evans, Director 8:35am ….. ANNOUNCEMENTS 8:40am ….. INTRODUCTION OF SPEAKER—Karen West, Chair

‘The New Era of Workplace Investigations: Key Strategies and Best

Practices’

Vic Albert Shareholder

Ogletree Deakins 9:40am ….. QUESTION AND ANSWER SESSION 10:00am ….. ADJOURNMENT

Human resource professional development programs conducted by the OKC Metro Employer Council less than one day in length qualify for “1 Point per Program” toward IPMA-CP and IPMA-CS recertification through the International Public Management Association for Human Resources (IPMA-HR). For more information about certification or recertification, please visit the IPMA-HR website at www.ipma-hr.org This program has been approved for 1.25 re-certification credit hours toward PHR, SPHR, and GPHR re-certification through the Human Resource Certification Institute (HRCI). Please be sure to note the program ID number on your recertification application form. For more information about certification or re-certification, please visit the HRCI homepage at www.hrci.org.

Activity ID: 376218 Recertification Credit Hours Awarded: 1.25 Specified Credit Hours: Business

OESC is recognized by SHRM to offer Professional Development Credits (PDCs) for the SHRM-CPSM or SHRM-SCPSM. This program is valid for 1.25 PDCs for the SHRM-CP or SHRM-SCP. For more information about SHRM certification or recertification, please visit www.shrmcertification.org.

Activity ID: Activity 19-VU76Z Professional Development Credits: 1.25 Intended Audience: All

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Ten Steps to a Successful Workplace Investigation

By Vic Albert, Attorney Ogletree, Deakins, Nash, Smoak & Stewart, P.C. victor.albert@ogletree.com If a problem or complaint has come up at your company or workplace, a proper investigation can help you figure out what happened -- and what to do about it. It can also help your employer avoid liability for employee wrongdoing, but only if you act fast and take effective action to remedy the problem. Below, you'll find the ten steps to a successful workplace investigation. 1. Decide whether to investigate. Before you put on your detective's hat, take some time to decide whether you really need an investigation. In a few situations -- for example, if all employees agree on what happened or the problem appears to be minor -- you may reasonably decide that a full-blown investigation is unnecessary. Usually, however, it's best to err on the side of conducting an investigation. If the problem is more serious than it seemed, failing to investigate can lead to legal trouble -- and continuing workplace problems. And sometimes, you just can't tell how widespread or substantial a problem is until you do a little poking around.

2. Take immediate action, if necessary. You might have to act right away -- even before you begin your investigation -- if a situation is volatile or could otherwise cause immediate harm to your business. If an employee is accused of sexually assaulting a coworker, stealing valuable trade secrets, or bringing a weapon to work, you'll probably want to suspend the accused employee temporarily -- with pay -- while you look into the matter. But be careful not to prejudge the situation or lead the accused employee to believe that you've already made up your mind.

3. Choose an investigator. You'll want an investigator who is experienced and/or trained in investigation techniques, is impartial and perceived as impartial by the employees involved, and is capable of acting -- and, if necessary, testifying in court -- professionally about the situation. If you have someone who meets this job description on your payroll, you're in luck. If not, you can hire an outside investigator to handle things for you.

4. Plan the investigation. Take some time up front to organize your thoughts. Gather any information you already have about the problem -- such as an employee complaint, a supervisor's report, written warnings, or materials that are part of the problem (such as X-rated emails or threatening letters). Using this information as your guide, think about what you'll need to find out to decide what happened. Whom will you interview and what will you ask? Are there additional documents that employees or supervisors might have? Is there anyone who witnessed important events -- or should have?

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5. Conduct interviews. The goal of every investigation is to gather information -- and the most basic way to do that is by asking people questions. Most investigations involve at least two interviews: one of the employee accused of wrongdoing, and another of the employee who complained or was the victim. Sometimes, you will also want to interview witnesses -- others who may have seen or heard something important. When you interview people, try to elicit as much information as possible by asking open-ended questions.

6. Gather documents and other evidence. Almost every investigation will rely to some extent on documents -- personnel files, email messages, company policies, correspondence, and so on. And some investigations will require you to gather other types of evidence, such as drugs, a weapon, photographs, or stolen items.

7. Evaluate the evidence. The most challenging part of many investigations -- especially if witnesses disagree or contradict each other -- is figuring out what actually happened. There are some proven methods of deciding where the truth lies -- methods all of us use in our everyday lives to get to the bottom of things. You'll want to consider, for example, whose story makes the most sense, whose demeanor was more convincing, and who (if anyone) has a motive to deceive you. And in some situations, you may just have to throw up your hands and acknowledge that you don't have enough information to decide what really happened.

8. Take action. Once you decide what happened, you'll have to figure out what to do about it. If you conclude that serious wrongdoing occurred, you will have to take disciplinary action quickly to avoid legal liability for that employee's behavior and to protect your company and other workers from harm. In deciding how to handle these situations, you should consider a number of factors, including how serious the actions were and how you have handled similar problems in the past.

9. Document the investigation. Once your investigation is complete, you should write an investigation report that explains what you did and why. This will not only give the company some protection from lawsuits relating to the investigation, but will also provide a written record in case of future misconduct by the same employee(s). Among other things, your report should explain how and when the problem came to the company's attention, what interviews you conducted, what evidence you considered, what conclusions you reached, and what you did about the problem.

10. Follow up. The last step is to follow up with your employees to make sure that you've solved the problem that led to the investigation. Has the misconduct stopped? Has the wrongdoer met any requirements imposed as a result of the investigation -- for example, to complete a training course on sexual harassment? If the investigation revealed any systemic workplace problems (such as widespread confusion about company policy or lack of training on issues like workplace diversity or proper techniques for dealing with customers), some training might be in order.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The New Era of Workplace Investigations: Key Strategies and Best Practices

Presented by Vic Albert, Oklahoma City victor.albert@Ogletree.com

Overview A successful workplace investigation is fair, thorough and effective

Be well-versed in applicable laws/polices Understand the stages of an investigation Balance the need to conduct investigations uniformly with the requirement of assessing individual situations Work closely with other departments involved in the investigation www

Why do Workplace Investigations Matter? Business/HR:

Resolve conflict early Legal:

Affirmative defense Failure to take reasonable steps to correct wrongful behavior may lead to additional causes of action

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Triggers for Investigations • Complaint (whether to

employer or EEOC) • Substance abuse • Threats against others

Anonymous letters

• Vandalism and other sabotage

• Violation of employer policy

• Safety problems • Theft

• Suspicion of employee misconduct

• Trade secret/proprietary and/or other intellectual property information

• Fraud and other misconduct

• Evidence of discrimination or harassment found in the workplace

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An Issue Is Raised

If an employee raises a concern about harassment, discrimination, retaliation, or similar workplace environment concerns, an investigation may be required. “Second-hand complaint” – if an employee raises a concern for another employee (regardless of subject employee’s consent) that alleges a violation of a work environment policy, an investigation may be required. Personal observations – if you observe conduct that raises a concern into a violation of policy, an investigation may be required. www.ogletree.com

Investigation Objectives The goals of an investigation should be:

1.To gather facts about the concern; 2.To determine whether there was a violation of company

policy or law; 3.To cause as little disruption as possible to employees,

clients, and workplace (preserving as much as confidentiality as feasible);

4.To encourage internal resolution and reporting of issues; and

5.To maintain a fair and respectful workplace.

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Confidentiality • The NLRB has been eroding an employer’s ability to

keep investigation reports confidential • Confidentiality policies—no blanket confidentiality • Requesting confidentiality of the investigation is

permissible only if employer can demonstrate it is necessary in a particular case based on objectively reasonable grounds.

• These rules apply to non-union employers due to the NLRB’s concerns over “chilling” protected concerted activity.

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Investigative Approach • Tailor your investigation plan to the facts and circumstances

(there is no “One-Size-Fits-All” approach). • To plan the investigation, consider these questions:

• Does action need to be taken immediately? Depending on circumstances, consider interim action before investigation.

• Is there a threat to the employee, the company, or its clients? • Who appears to have first-hand knowledge of circumstances? • Who has second-hand knowledge of circumstances? • What internal policies and procedures apply? • Are witness interviews needed? If so, what order should

the witnesses be interviewed in? • Who should conduct the interviews?

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Reviewing Additional Relevant Information Gathering relevant information outside of the investigation can add value to the investigation and provide a more comprehensive look at the circumstances Relevant information can include, but will not always and is not limited to:

• Personnel Files • Performance Reviews • Past documented disciplinary action or

complaints, if applicable • Policies and Procedures • Email records • Cell phone records if the employer has

access already www.ogletree.com

Best Practice Interviewing Techniques • Start broadly and get narrower • Think about the circumstances alleged and ask for

specifics on the who, what, when, where, and how • Ask neutral questions (do not express judgment or

exhibit bias) • Do not express opinions during interview,

e.g. “as ridiculous as this will sound, I have to ask...” • Do not ask leading questions • Provide objective details to the accused about the

allegations

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Best Practice Interviewing Techniques Okay to inquire about motives, especially in “he said/she said” circumstances:

“Is there a reason he/she would allege this?” “How often do you and him/her interact?” “What is your relationship like?”

Do Ask: Was anyone else there? Is there anyone else I should speak to? What do you want (to happen)? Is that all or is there anything else you think I should know?

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Note-Taking During Interviews • At the outset of the investigation, explain that it is your

practice to take notes (this is an acknowledgement to promote transparency, not a request for permission)

• Do not feel like you need to transcribe – it is important to strike a balance between note taking and maintaining eye contact

• If there are two interviewers, agree beforehand the role each of you will play (note taker vs primary speaker)

• Use abbreviations to make it easier to refer to parties in an investigation (initials, etc.)

• Follow a consistent method – e.g. use the body of the page to take notes of what the employee has said, and the margin to note items for future follow up

• Use quotation marks to capture remarks where appropriate www.ogletree.com

Note-Taking During Interviews (Cont.) • Do not include conclusions in your interview notes (e.g.

“employee lied”, “this cannot be true”, etc.) • Do not include personal feelings or reactions to interview

• “Annoyed that employee keeps avoiding question” • It is fine to include observations but make sure they are

neutral • Examples of neutral observations include:

“employee blushed”, “employee stopped maintaining eye contact”

• Do not include biased observations: “employee acted guilty”

• If you take notes, consult with counsel about how they should be retained (investigative notes are generally not stored in the personnel file

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Credibility • Central element in most investigations

• Can be the key factor to reach a conclusion in a case with only

circumstantial or conflicting evidence.

• Comparison of credibility between witnesses.

• If it is a “he said/she said” case – credibility may break the tie!

• Look for circumstantial facts to determine credibility. • The ability to judge credibility (whether from life experience or

litigation experience) is a key factor in selecting an investigator.

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Making a Recommendation • Review past practices and

similar situations to ensure recommendation is consistent and fair

• Differentiate between facts you have found and credibility assessments you have made

• Remedial measures should: • Be equal to the wrongdoing (if

misconduct is found) • Be tailored to avoid recurrence of

subject behavior

• Be feasible; recommend action that will work

• Consider all available courses of action: • No Action • Disciplinary Warning

(Verbal or Written) • Demotion • Compensation Impact • Training • Process or Policy Changes • Transfer • Termination

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Concluding an Investigation • Close the loop with the complainant

• Ensure no retaliation

• Written report(s)? • Privileged (who said what) • Non-privileged (conclusions/recommendations)

• Follow-up

• Monitor that no continued problem on the subject matter

• Monitor that no retaliation happens

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Following Up & Following Through Good practice to follow up with relevant parties

Following up can ensure any recommendations adapted by line managers are effective

Make sure that no retaliatory conduct has occurred

Increases confidence in effectiveness of internal procedures & policies

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Courts and Plaintiff’s Attorneys Like Retaliation Claims

• Courts have construed retaliation claims broadly • Participation/opposition in workplace investigations

may constitute “protected activity” • “Zone of Interests” • “Cat’s Paw” • EEOC Enforcement Guidance on Retaliation

and Related Issues • Nearly 45% of charges include retaliation claim

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Top Investigation Mistakes

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Failure to Develop and Disseminate Effective Complaint Mechanisms

How to fix it? • Provide multiple complaint avenues • Indicate that the information will be kept confidential

to the extent possible; • State that if misconduct is found, appropriate remedial steps

will be taken; and • Assure employees that they will not be exposed to

retaliation for complaining or participating in a complaint investigation

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Ignoring Complaints Overzealous vs. taking appropriate action

Watch out for employees’ request for confidentiality

Listen for buzzwords (i.e., “I feel harassed” or “she is discriminating against me”)

Carefully analyze the decision to allow employees to solve issues on their own

Common sense Legal obligations Good business practices

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Lack of Objectivity • Investigator objectivity is a principal component to a fair

investigation

• Watch out for personal biases influencing credibility analyses

• DO NOT reach a conclusion before beginning the investigation • i.e., a high-level executive is accused of wrongdoing, and the

investigator recognizes that drastic steps (such as discharge) would have an immediate, negative impact on the business

• Remember, there is no such thing as a “bad fact” in an investigation – all information you collect will help you reach a fair and reasonable conclusion

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Allowing the Investigation to Become a Witch Hunt

Investigator may become convinced that one party’s

version of the events are true and steer the investigation in

that direction i.e., in a sexual harassment case, the investigator might determine that the allegations are not credible before finishing all of his or her work. As a result, the investigator might begin to focus attention on the complainant’s behavior exclusively to see if the complainant’s story can be challenged or contradicted

Don’t veer off-track!

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Failure to Reach a Conclusion

Conflicting accounts do not justify an inability to determine whether allegations have been substantiated Most of the time, an investigator should be able to review and analyze all evidence, make credibility determinations, determine parties’ motives, and reach finding and conclusions.

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Avoid Reaching a Legal Conclusion

Only reach FACTUAL conclusions!

Investigator’s job is not to determine whether actions are legal or illegal and making such a determination may come back to bite you

Besides, the goal of workplace investigations is to resolve behavioral issues before they become unlawful

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Difficult Investigation Scenarios

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Difficult Investigation Scenario

What do you do when an employee says he or she wants their lawyer to be present during the interview?

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Difficult Investigation Scenario

What do you do when the complaining employee alleges he or she is so distressed that they are unable to come to work and participate in an interview?

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Difficult Investigation Scenario

What if the employee refuses to be interviewed?

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© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The New Era of Workplace Investigations: Key Strategies and Best Practices

Presented by Vic Albert, Oklahoma City victor.albert@Ogletree.com