Employment Law: Workplace Investigations

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July 25, 2018


THIS OUTLINE IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

I. WHY INVESTIGATE?

A. Courts and administrative agencies have placed a heightened premium on an employer’s prompt and effective investigative mechanisms.

B. In Burlington Industries, Inc. v. Ellerth, 524 US 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court made it clear that, in cases where no tangible employment action is involved, an employer may limit or avoid liability entirely under Title VII if it takes steps to prevent and remedy harassing behavior through prompt and effective investigations. Although these decisions focus on sexual harassment, their applicability to other discrimination cases-such as race and age-is evident.

1. Employers are strictly liable for sexual harassment by supervisors when the harassment results in a tangible employment action, i.e., termination, demotion, failure to promote, etc.

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2. When no tangible employment action is taken, an employer may assert an affirmative defense to liability, consisting of two elements: (a) the employer used reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm.

3. Tangible Employment Action - “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different assignments or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761.

a. A constructive discharge resulting from harassment may be a tangible employment action and, therefore, preclude use of the affirmative defense. Pennsylvania State Police v. Suders, 542 U.S. 129, 140 (2004). See also, Barra v. Rose Tree Media School Dist., 858 A.2d 206, 216 (Pa. Commw. 2004); Entrot v. The BASF Corp., 819 A.2d 447, 467 (N.J. Super. 2003).

4. Notice - Lack of notice concerning the harassment will not defeat the employer’s liability for supervisory harassment. However, notice is an important element of employer liability when it concerns non-supervisory harassment.

5. Actual Knowledge
a. Generally, an employer has the duty to investigate when it knew or should have known of the harassment by co-workers. Farley v. American Cast Iron Pipe Company, 115 F.3d 1548, 1552 (1lth Cir. 1997).

b. However, it is often unclear when an employer has notice. Some courts hold that the harassed employee must report the harassment to a member of higher management. See Kilgore v. Thompson & Brock Management, Inc., 93 F.3d 752, 754 (11th Cir. 1996), rehearing, en banc, denied (105 F.3d 679 (11th Cir. 1997). Other courts impute knowledge to the employer if the harassed employee simply tells a member of management, regardless of level. See, Nichols v. Frank, 42 F.3d 503, 508 (9th Cir. 1994); Young, v. Bayer Corp., 123 F.3d 672,675 (7th Cir. 1997), appeal after remand at 2000 U.S. App. Lexis 1392 (2000).

6. Constructive Knowledge

a. An employer has an obligation to address sexual harassment when it is on constructive notice of the harassment. That is, the employer “should have known” of the harassment because it was pervasive enough to put the employer on notice. Waltman v. International Paper Co., 875 F.2d 468, 478 (5th Cir. 1989) (sexual graffiti directed at an employee raises a factual issue as to whether the harassment was pervasive enough to put the employer on notice of harassment); Sharp. v. City of Houston, 960 F.Supp. 1164, 1170-1171 (S.D.Tx. 1997), affirmed 164 F.3d 923 (1999), reh’g den. 1999 U.S. App. Lexis 4107 (1999) (frequency of alleged harassers’ conduct may have placed the employer on notice); But  see, Temparali v. Rubin, No. CIV. A.96-5382,1997 WL 361019, at *3 (E.D. Pa. June 20,1997) (“ambiguous rumors” do not trigger employer's duty to address alleged sexual harassment).

b. Employers who enact an anti-harassment policy that is “comprehensive, well-known to employees, vigorously enforced, and provides alternate avenues of redress” have a viable defense against claims of constructive knowledge. Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir. 1997); See also Colbert v. Georgia-Pacific Corporation, 995 F.Supp. 697 (N.D.Tx. Jan. 30,1998) (employer did not have constructive knowledge of alleged harassment, because employee did not avail herself of employer’s mechanisms for reporting harassment). But see, Brostrom v. Hercules Corp., No. 92 Civ. 1674 (LBS), 1994 WL 592680, at *8 (S.D.N.Y. Oct. 27, 1994) (regardless of employee’s failure to use reporting procedures, if employer knew of harassment it would not escape liability).

C. State Law Application of Faragher-Ellerth

1. Under New Jersey law, an employer may be found liable for sexual harassment on a negligence theory of liability based upon “its failure to have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training, and/or monitoring mechanisms.” Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 626 A.2d 445, 463 (N.J. 1993).

2. Bouton v. B.M.W., 29 F.3d 103, 110 (3rd Cir. 1994), “an effective grievance procedure - one that is known to the victim and that timely stops the harassment - shields the employers from Title VII liability for a hostile environment. By definition, there is no negligence if the procedure is effective. A policy known to potential victims also eradicates apparent authority the harasser might otherwise possess.”

D. The EEOC’s Enforcement Guidance on vicarious employer liability expressly advises that employers should set up “a mechanism for a prompt, thorough and impartial investigation into alleged harassment” and, further, that “as soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary.” See EEOC Notice No. 915.002 (June 18, 1999).

II. WHO IS INVESTIGATED?

A. Current Employees

1. The Reasons for Workplace Investigations
a. As highlighted by the Sarbanes-Oxley Act, 15 U.S.C. § 7201, et seq., issues relating to the Securities and Exchange Commission, the Internal Revenue Service, state and local governmental entities, and criminal investigations.
b. Sexual harassment and other forms of workplace harassment.
c. Other discrimination claims.
d. Workplace theft.
e. Workplace drugs, alcohol, firearms and other unlawful activity.

2. Potential Methods of Investigation
a. Employee interviews.
b. Workplace searches. In some investigations, it may become necessary to search the area where an employee works. Searches may implicate an employee’s fundamental right to privacy.
(i) Because the reasonableness of an expectation of privacy depends largely on the context of the search, it is important to understand what constitutes the workplace. The workplace includes the areas and items that are related to work and that are generally within the employer’s control. Shaul v. Cherry Valley-Springfield Central School Dist., 363 F.3d 177 (2d Cir. 2004).
(ii) For example, offices, desks and file cabinets are part of the workplace even if the employee has placed personal items in them. Although personal items do not change the character of a file cabinet or desk, not everything that is brought into the business can be considered part of the workplace. An employee’s personal luggage, briefcase or handbag carries with it an expectation of privacy.
(iii) Company policies, notices and waivers signed by employees will destroy any reasonable expectation of privacy in response to workplace searches. American Postal Workers v. U.S. Postal Service, 871 F.2d 556 (6th Cir. 1989); Gretenlord v. Ford Motor Co., 538 F. Supp. 331 (D.Kan. 1982).

c. E-Communications in the Workplace

(i) The many forms of electronic storage often contain information relevant to an investigation. Because this is a rapidly developing area of the law and because of the statutory protections in this area, employers must be careful before searching these sources.

(ii) Employers and employees often mistakenly believe that deleted E-mails are not discoverable and have disappeared forever. Most deleted E-mails, however, live on and are readily available in deleted or trash folders until these folders are emptied manually and then remain on the hard disk unless and until other files overwrite them. Even deleted emails may live on in central servers and elsewhere. Many employees do not realize that if they send or receive a message at work employers have back-up systems containing these E-mail messages.

(iii) An E-mail policy is essential for all employers. Employees must be informed that the work computer/E-mail system is the property of the employer and that the employee has no privacy rights as to the contents of the employer’s computer system. Employers should enact rules and regulations regarding electronic workplace usage to eliminate an employee’s expectation of privacy and protect the employer from liability resulting from an employee’s abuse of E-mail and the Internet.

3. Potential Pitfalls from an Unreasonable Search.

(i) There are special concerns for public employers due to the Fourth Amendment guarantee of protection from unreasonable searches and seizures by the government when an individual has a reasonable expectation of privacy.
(ii) Many state constitutions have similar provisions.
(iii) When an employee’s rights have been violated by an unreasonable search, he or she may have a viable cause of action. Potential common law claims may include:

(a) Invasion of Privacy;
(b) Defamation;
(c) Intentional infliction of emotional distress;
(d) Negligence;
(e) Breach of contract; and
(f) Tortious interference with contract.

B. Prospective Employees

1. The Reasons for Investigations
a. Companies invest substantial sums of money on training, wages and benefits on new employees, whom they expect to trust and to rely upon in carrying out the job responsibilities for which the employees were hired.
b. Avoidance of “negligent hiring” claims by co-workers or customers.
c. An ounce of prevention is worth a pound of cure. Job applicants generally have fewer privacy rights than employees.

2. Criminal record inquiries

a. Many states prohibit the use of a job applicant’s arrest record in making a hiring decision (exceptions typically include decisions concerning positions at financial institutions, health care positions or positions where the applicant would have regular access to patients, drugs or access to a customer’s private residence).
b. Use of arrest records in hiring decisions may violate Title VII, because it has a disproportionate impact on minorities, unless job related and consistent with business necessity.
c. Most states permit employers to consider an applicant’s criminal convictions. However, Title VII and many states limit an employer’s ability to use criminal conviction information to disqualify job applicants, unless the information is job related and consistent with business necessity.

III. LEGAL ISSUES IMPACTING INTERNAL INVESTIGATIONS

A. Potential Claims By The Alleged Victim

1. In many employment law areas, management has an affirmative legal duty to investigate.

a. In establishing management’s obligation to take affirmative steps in anticipation of sexual harassment claims, the New Jersey Supreme Court wrote in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993):

While we decline to set forth the standard of negligence governing sexual harassment claims, we note that common sense suggests that sexual harassment at the workplace is foreseeable even where anti-harassment policies exist . . . . In light of the known prevalence of sexual harassment, a plaintiff may show that an employer was negligent by its failure to have in place wellpublicized and enforced anti-harassment policies, effective formal and informal complaint structures, training and/or monitoring mechanisms. We do not hold that the absence of such mechanisms automatically constitute negligence, nor that the presence of such mechanisms demonstrates the absence of negligence. However, the existence of effective preventative mechanisms provides some evidence of due care on the part of the employer . . . similarly, given the foreseeability that sexual harassment may occur, the absence of effective preventative mechanisms will present strong evidence of an employer’s negligence. Id. at 621-22.

b. Some courts have recognized tort claims based upon an employer’s failure to investigate and take action concerning the victim’s allegations of sexual harassment.

2. Moreover, an ineffective investigation can result in employer liability.

3. On the other hand, and most importantly, an effective investigation can provide employers with a valid legal defense to discrimination claims under federal law.

a. In 1998, the United States Supreme Court issued two decisions, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), in which it held that an employer may avoid liability under federal law for a supervisor’s harassment in cases where the plaintiff has not suffered a tangible adverse employment action, if:

(i) the employer exercised “reasonable care to prevent and to correct promptly any sexually harassing behavior”; and
(ii) the plaintiff employee “unreasonably failed to take advantage” of any preventative or corrective opportunities provided by the employer, pursuant to its policies and procedures.

4. Although state courts traditionally look to federal decisions interpreting Title VII claims, it is unclear whether states will routinely follow the Faragher/Ellerth defense.

B. Potential Claims By The Accused

1. Negligent Investigation. The majority of jurisdictions that have addressed this claim in the employment context have refused to recognize that negligence can be a basis for recovery by an accused. See, Olive v. City of Scottsdale, 10 I.E.R. Cas. (BNA) 1467 (D. Ariz. 1995) (and the cases cited therein); Lambert v. Morehouse, 843 P.2d 1116 (Wash Ct. App. 1993) (no tort liability for negligent investigation). See also, Noye v. Hoffman-LaRoche, 238 N.J. Super. 430; cert denied, 122 N.J. 146 (1990) (improper or inadequate investigation by supervisor, did not, without more, prove negligence on part of employer.; Williams v. Continental Airlines, Inc., 943 P.2d 10 (Colo. Ct. App. 1996), writ of cert den., 1997 Colo. Lexis 703 (Colo. Aug. 18, 1997) (refusing to recognize a cause of action for negligent investigation).

2. Wrongful Termination

a. In Kestenbaum v. Pennzoil Co., 766 P.2d 280, 4 IER Cases 67 (M.M. 1988), cert. denied, 109 S. Ct. 3163 (1989), plaintiff filed a wrongful termination claim, based on the allegation that he was fired without fair investigation and consideration of his response. The New Mexico Supreme Court affirmed a seven figure jury award for plaintiff, based upon a sloppy investigation.

b. In Simpson v. Pizza Hut, 58 F.E.P. Cases 558 (E.D. Pa. 1991), an alleged harasser, who was employed at-will, failed to state a claim for wrongful discharge in violation of public policy.

3. Breach of Contract

a. A number of courts have recognized that, to the extent a handbook becomes a contract requiring specific reasons for dismissal, then the employer must conduct an adequate investigation or be liable for breach of the contract. Lambert, supra; Gaglidari v. Denny’s Restaurants, 815 P.2d 1362, 1473 (Wash. 1991).

4. Workplace Defamation

a. For a claim of defamation to be actionable, there must be: a false and defamatory statement concerning the plaintiff; an unprivileged publication to a third person who understood the communication to relate to plaintiff; fault amounting at least to negligence on the part of the publisher; and, harm caused by the publisher. Restatement (Second) of Torts, § 558.

b. Words concerning individuals in their business, trade, employment, or office, which impute a lack of integrity, credit or honesty, if without justification, are slanderous per se. Restatement (Second) of Torts, § 573.

c. However, intra-company communications in the ordinary course of business have been protected, either because they are “unpublished,” e.g. Lovelace v. Long John Silver’s, 841 S.W. 2d 682 (Mo. Ct. App. 1992), or because they are covered by a qualified privilege. Garziano v. E.I. du Pont de Nemours & Co., 818 F.2d 380 (5th Cir. 1987) (communication about a sexual harassment investigation was made in good faith and involved a subject matter in which the employer had an interest). The conditional privilege can be lost through malice or excessive publication. Miller v. Service Master, 851 P.2d 143 (Ariz. Ct. App. 1992).

5. Invasion of Privacy
a. The common law right of privacy is invaded by:
(i) The intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns, if the intrusion would be highly offensive to a reasonable person. Restatement (Second) of Torts §652B; or
(ii) The publicity of a matter concerning another that places another before the public in a false light if it would be highly offensive to a reasonable person, and the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter. Id. at §652E.

IV. LIMITATIONS ON THE TOOLS OF THE INVESTIGATOR

A. The Johnnie’s Poultry Warning

1. Interrogations of employees on matters involving their protected concerted activities are banned by the National Labor Relations Act.

2. In Johnnie’s Poultry Co., 146 N.L.R.B. 770, 774-75 (1964), enforcement den. 344 F.2d 617 (8th Cir. 1965), the Board recognized that an employer’s need to establish its legal defenses gave rise to a limited exception to this rule, provided that an employer wishing to interrogate an employee must give the employee affirmative warnings and other assurances that no reprisals will take place as a result of the interrogation. Specifically, the Board stated that employers:
a. Must communicate to the employee the purpose of the questioning;
b. Must obtain the employee’s participation on a voluntary basis;
c. Must assure him that no reprisals will take place;
d. Must not, in its questioning, pry into union matters outside the scope of the legitimate purpose for which the questioning is taking place;
e. Must not elicit information concerning an employee’s subjective state of mind; and
f. Must not interfere with the statutory rights of employees.

3. While the 8th Circuit Court of Appeals reversed the Board’s holding, NLRB v. Johnnie’s Poultry Co., 344 F.2d 617, 619 (8th Cir. 1965), there is general agreement in the federal courts that the reversal did not reject the Board’s requirement of assurances to the employee and participation on a voluntary basis. See, e.g., Beverly Health and Rehabilitation Svcs., 297 F.3d 468 (6th Cir. 2002).

B. Weingarten Rights

1. In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Supreme Court held that unionized employees have a right to union representation during investigatory interviews if they reasonably believe that the interview may result in disciplinary action.

2. The scope of Weingarten rights:
a. Employers are under no obligation to advise employees of their Weingarten rights. Montgomery Ward & Co., 269 N.L.R.B. 904 (1984).
b. Weingarten rights are triggered when an employee puts the company on notice the he or she is requesting the presence of an employee representative. NLRB v. New Jersey Bell Tel. Co., 936 F.2d 144 (3d Cir. 1991).
(i) Asking for the presence of a personal lawyer does not constitute a request for Weingarten rights. Medical Manors, Inc., 206 N.L.R.B. 962 (1973).

C. Other Statutory Limitations

1. Polygraph examinations.
a. The use of polygraph examinations for employees is prohibited in many states.

V. WHO SHOULD BE THE INVESTIGATOR?

A. The Choices

1. Internal Investigation
a. Advantages:

(i) Cost.
(ii) Greater familiarity with the corporation and its procedures and goals.
(iii) Greater familiarity with people involved.
(iv) Less interference with the ordinary course of business.

b. Disadvantages:
(i) Any internal investigation carries with it the risk that the investigation will become subject to disclosure in criminal or civil proceedings.
(ii) Even a well conducted investigation can serve as a “road map” for adversaries, if discovered.
(iii) The process may itself trigger whistleblowing claims by other employees.
(iv) Corporate divisiveness - unwillingness of employees to talk, or investigators to ask.
(v) May be perceived to be an admission that there is a problem.

2. External Investigation

a. Advantages
(i) Expertise;
(ii) Independence;
(iii) Credibility; and
(iv) Better structured to apply attorney privileges (if lawyers are used).

b. Disadvantages:
(i) Cost.
(ii) Loss of employer control.

B. General Considerations

1. Competency and skill of interviewer/investigator

a. Must have the ability to understand the purpose and the issues (both practical and legal) of the investigation.
b. Must formulate appropriate follow up questions, especially when new facts and issues arise during the interview.
c. Must have knowledge of company policies, procedures, practices and rules and corporate culture.
d. Must possess effective interviewing skills, specifically in view of the personalities and background of the potential interviewees
(e.g., ability to develop rapport, to press for admissions, to understand interviewee).
e. Must have credibility (e.g., no conviction record, no history of termination for misconduct or incompetence, no history of moral turpitude, no history as unsuccessful defendant in employment litigation).
f. Must be impartial (e.g., no bias or grudge).
g. Must not act as an advocate during the investigation.
h. Must have the ability to take thorough, accurate notes.
i. Must have the ability to maintain confidentiality, to the extent appropriate.
j. Most importantly, must be effective as a witness in a jury trial.

VII. WHAT IS THE INVESTIGATIVE PROCESS?

A. Purposes Of The Investigation

1. To explore potential misconduct;
2. To find facts relevant to the allegations;
3. To lay the foundation for devising and implementing appropriate remedial measures, and
4. To prepare for possible litigation.

B. The Litigation Hold

1. A party always has an affirmative obligation to preserve evidence relevant to current or reasonably foreseeable future litigation.
a. In other words, even before a company serves, or is served with a summons and complaint, a legal duty arises to preserve documents and data if they are relevant to a lawsuit that it reasonably anticipates will be filed in the future.

2. What triggers the duty?
a. An incident occurs that results in death or serious bodily injury.
b. A third-party or non-party requests facts relating to an incident or dispute.
c. An attorney requests facts on behalf of a client relating to an incident or dispute.
d. A potential claimant threatens litigation, orally or otherwise, to an employee or other agent.
e. A demand letter from opposing counsel.
(i) It is becoming more common for opposing counsel to include formal notice of the duty to preserve in these letters.
(ii) Also, plaintiffs are beginning to file preservation orders with their complaints and are seeking early discovery of IT personnel to “show and tell.”
f. Complaints by employees or consumers. Query: what rises to the level of a “complaint?”
g. An employee makes a formal complaint to management regarding impropriety by the employer or its personnel.

3. Complying with the Duty to Preserve. As soon as litigation is reasonably anticipated, a company must suspend immediately its routine document retention and destruction policies. The company must then create and implement a “litigation hold” or “freeze” to ensure that relevant data is preserved.

a. A litigation hold is a process designed to preserve all documents and data that may be relevant to the litigation.
b. This includes both (a) information reasonably calculated to lead to the discovery of admissible evidence, and (b) information reasonably likely to be requested during discovery.
c. The company must educate its employees about the process and monitor their compliance. Although the company is primarily responsible for document preservation and production, the litigation hold process should be discussed and coordinated with outside counsel for maximum effectiveness.

C. Planning The Investigation

1. Introductory briefing for management.
2. Assembly and analysis of all relevant documents and applicable company policies.
3. Review of applicable legal principles.
4. Development of investigative plan.

a. Identify potential employees to interview who may have relevant knowledge.
(i) Where the investigation involves a complaining employee, interview the complainant first, any others who have knowledge next, and the alleged offender last.
(ii) There may be times when the investigator will deviate from this order, such as when allegations involve threats of physical harm and require an immediate response to mitigate the danger.

b. Consider a location and time to conduct the interviews.
c. Make sure to allocate enough time to thoroughly interview each witness.
d. Prepare an outline of questions, but investigator may have to go beyond the outline based on responses or new allegations.
e. Prepare a list of documents that should be reviewed – policies, prior notes regarding the investigation, personnel files, etc.

5. Detailed interviews.
6. Follow up on investigative issues.
7. Preparation of reports.
8. Presentation of reports to decision makers.
9. The “Decision.”

D. Conducting the interview

1. Practical considerations for all employee interviews
a. Prepare and plan for the interview in advance.
b. Consider whether a written statement should be obtained.
c. Remain impartial.
d. Where applicable and possible, preserve the anonymity of the alleged victim(s).
(i) This may be difficult when interviewing witnesses insofar as the circumstances of the case may implicitly reveal the identity of the alleged victim(s).
(ii) By interviewing a number of witnesses, the investigator may be able to tell the alleged harasser that a number of people have observed questionable behavior without specifically identifying the complaining party.
(iii) The investigator should never promise complete anonymity to the alleged victim(s) of harassment. It may be necessary, particularly if litigation ensues, to reveal the identities of the victims. Also, the alleged harasser may simply know who has complained by virtue of the nature of the complaint.

2. Threshold questions for every investigation
a. Who?
b. What?
c. When?
d. Where?
e. How?
f. Why did this happen?
g. Who else may have relevant information?
h. Who is to blame?
i. Could this have been avoided?
j. Are there notes, tapes, documents or other hard evidence?
k. Identify all individuals with possible knowledge.
l. What would the interviewee have done differently?
m. What should be done?
n. Ask the “close out” question.

3. The Interview Itself
a. Explain the purpose of the interview (e.g., “We’re looking into concerns of unfair treatment” or “Due to a complaint, we need to ask you some questions”), and then explain the investigation process.
b. If the employee is a union member, review the collective bargaining agreement to see whether it has provisions covering employee investigations.
c. Should/must interview comply with Weingarten and/or Johnnie’s Poultry.
d. Start broad and then narrow the questions.
e. Avoid telling interviewee what others have said.
f. Do not disclose any more information than is necessary.
g. Ask about the events which transpired.
h. Ask whether any other individual has information on the matter.

For each source identified, ask:

(i) What knowledge does this person have?
(ii) From where did he or she get this knowledge?

i. Ask whether the individual has any notes, documents, e-mails, or other information or physical evidence relevant to the matter.

4. Additional Considerations When Interviewing the “Complainant”

a. Do not allow the complainant to register a complaint, but request that the employer do nothing.
(i) So, explain why the investigator cannot keep this complaint confidential, but must move on and take the matter further.
b. Pledge no retaliation, and a fair and prompt investigation, but do not over promise.
c. Pin down the story.
(i) Ask how what happened affected the complainant? Has your job been affected in any way?
(ii) Have you taken any action to respond to the situation?
(iii) Did you tell anyone about what happened?
(iv) Did the person who did what you are complaining about do the same things to anyone else? Do you know whether those employees complained?
(v) Ask how the complainant would like to see the matter resolved (record the response verbatim in notes).
(vi) Ask the “close out” question.

5. Additional Considerations When Interviewing the “Accused.”
a. Instruct the accused that this will give him/her an opportunity to tell his/her side of the story and to advise management of any information which it should consider.
b. Convey the seriousness of the matter.
c. Always get the accused’s side of the story. Pin down the story.

(i) Ask what the accused is prepared to do about the situation?
(ii) Does the accused have any suggestions regarding how the situation can be resolved?
(iii) Do not accept a blanket denial.
(iv) Probe for possible motives by the accused, and the complainant.
(v) Ask the “close out” question.

d. Do not give an appearance of predisposition in the case and do not announce any decision immediately.
e. Do not be intimidated by the senior corporate executive as the “accused” (must be excluded from the decision making process).

6. Concluding the Interview

a. Close the discussion of each event by asking, “Have you now told us everything you know about ________?”
b. And, “Is there anything else you want to tell us?”
c. Recount the significant points with the interviewee and ask him or her to confirm this as complete and accurate. Reflect that confirmation in notes.
d. Tell the interviewee to contact the interviewer with additional information.
e. Remind the interviewee to keep this information confidential and of the company’s policy against retaliation for participation in the investigation.
f. Do not hesitate to re-interview.

7. What if Witnesses Won’t Cooperate?

a. If the complainant, document with letter that employer tried to respond, but could not due to lack of cooperation.
b. If the accused, document with letter that accused had opportunity to present his side of the story and vindicate his rights, yet declined.
c. In both cases, inform the uncooperative party that the employer will make a decision based on all evidence in its possession.
d. For third party witnesses - suspend with “the keys to the jail” or discipline/discharge?

8. What to do if Employee-Witnesses are Represented by Labor Unions

a. Reread the collective bargaining agreement.
b. Remember to protect their Weingarten rights.
c. Remember the Johnnie’s Poultry warning.

9. What to do if the Employee-Witnesses are Represented by Attorneys

E. Practical Tips

1. Beware of attorney-client privilege issues.
2. Collect, don’t disclose, information.
3. Consider whether the interview should be taped.
4. If there is physical evidence, establish a chain of custody. Keep all evidence.
5. Document every step of the investigation, preparing a full and specific account of the allegations, the responses and witness perceptions.
6. Take careful notes during the interviews and prepare file memos after each interview.
7. Experts or outside consultants should be employed only by and under the direction of legal counsel, with all expert reports directed to legal counsel.
8. What if an employee, (particularly the accused or a third party) presents false information?
9. Every investigation is different.
10. Don’t sacrifice accuracy and thoroughness for quickness. But do it quickly. Delays encourage the complainant to go outside to get action and results.
11. At the decision making stage, the vital inquiry is: Imagine how this case will look to a jury.

F. What if it looks like a tie?

1. Search thoroughly for corroborative evidence or witnesses. Is corroborative evidence lacking where it should exist?
2. Are the stories consistent and sufficiently detailed?
3. Look the witnesses in the eye. Use your common sense.
4. Make a decision.

VIII. AVOIDING RETALIATION CLAIMS

A. Retaliation claims are on the rise, and can survive even where the underlying harassment claim ultimately is found without merit. Employers often create a case where there otherwise would be none by retaliation against an employee who complains.

B. Practical Tips For Preventing Retaliation Claims

1. Have an anti-retaliation policy that is distributed to employees at large;

2. Inform claimant and accused of anti-retaliation policy and reporting procedures and periodically check to ensure that policy is up-to-date and working as planned;

3. Minimize adverse employment actions where possible against individuals who have made protected complaints until investigation is resolved;

4. Analyze with careful scrutiny proposed adverse employment actions against individuals who have made protected complaints;

5. Carefully document all adverse employment actions against individuals who have made protected complaints;

6. Treat all employees alike -- those who have filed complaints and those who have not


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