Hiring and Firing Considerations To Minimize Employer Liability

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August 21, 2018
Author: Devon D. Williams
Organization: Ward and Smith, P.A.

Every employer has a duty to select competent employees for obvious business reasons. This obligation is sometimes said to be expected and also required for the purpose of protecting members of the public who will come \"into contact with the employment situation.\" Customers, vendors, and members of the general public who the employee will meet in the course and scope of the employment may be within this zone of protection. However, when selecting employees, an employer must balance the desire to select good, competent, and safe employees with the need to conduct an investigation that in both manner and scope will avoid claims of discrimination or other illegal practices.

Usually, a person claiming harm by an employee alleges that the employer engaged in \"negligent hiring.\" The elements of a claim for negligent hiring typically are:
(1) A specific wrongful act by the employee;
(2) The employee's incompetence or unfitness for the job;
(3) The employer's actual or constructive notice of the employee's incompetence or unfitness; and,
(4) Injury resulting from the employee's incompetence or unfitness.

Thus, for an employer to demonstrate reasonable care in selection and hiring, the employer should conduct some background investigation, particularly contacting an applicant's past employers and listed references.

Background checks should be as easy as picking up the telephone and calling past employers. The law of North Carolina, specifically N.C. Gen. Stat. § 1-539.12, provides a current or former employer with immunity from civil liability and damages for disclosure of information about a current or former employee's job history or \"job performance\" to a prospective employer upon request. Id. at (a). Immunity will not apply when the aggrieved party shows by a preponderance of the evidence that the information disclosed was false and the employer who provided the information knew or reasonably should have known that the information was false. Id. at (1) & (2). Thus, good faith error is covered by the immunity.

The definition of \"job performance\" for purposes of the immunity is limited to suitability of the employee for re-employment, the employee's skills, abilities, and traits as they may relate to suitability for future employment, and the reason for the employee's separation in the case of a former employee. N.C. Gen. Stat. § 1-539.12(b). Nevertheless, in tandem with the relative ease of obtaining a criminal background check, the prospective employer should be able to perform a pretty good in-house background check.

In reality, it is not so simple. Notwithstanding G.S. 1-539.12, the prevailing attitude of well-counseled businesses is to provide verification of the employment and such non-controversial facts as start and end dates of the employment. Fortunately, criminal records are now relatively easy to obtain and an employer, without having to employ an outside agency, can usually obtain information which will facilitate an in-house criminal background check of an applicant.

Employers who do perform criminal background checks on an applicant or employee should be aware that certain uses of the information, such as a blanket policy and practice of excluding applicants or disqualifying employees based solely upon information indicating an arrest record, can result in a charge of discrimination. Specifically, these records are inaccurate sometimes, and because of the disproportionate representation of minorities among those with criminal records, the EEOC has taken the position that an employer should not use an arrest record, standing alone, to deny employment to any applicant or position to any employee. After all, the arrest record may not report the ultimate disposition of the charge. On the other hand, an employer can screen out applicants or employees who have been convicted of a crime if the employer can show that there is a specific link between the criminal conduct by the applicant or employee and the risks inherent in the duties of the particular position sought or available.

Employers are therefore encouraged to engage in an individualized assessment with regard to each applicant or employee, as opposed to summarily rejecting an applicant or employee with a less than perfect criminal record. Title VII also prohibits unintentional patterns and practices that have a discriminatory effect (i.e., disparate impact). If a facially neutral policy or practice disqualifies a disproportionate number of applicants or employees in a protected class and the employer fails to show that the policy is both job-related and consistent with business necessity, the EEOC will likely conclude that the policy violates Title VII.

Due to multiple factors, such as the hit-or-miss aspects of doing it yourself, as well as the increasing mobility and anonymity of the workforce, employers increasingly look to outside agencies, also referred to as a consumer reporting agency (\"CRA\"), to perform background investigations. In those cases, the process is regulated by the federal Fair Credit Reporting Act (\"FCRA\"). The FCRA requires multiple disclosures and authorizations that must be given to, and received from, the affected applicant or employee concerning the applicant's or employee's consumer rights. Other detailed disclosures are required if the employer decides to take adverse action against the applicant or employee based on any information discovered during a background check.

Conventional wisdom is that it is easier and advisable to use a CRA to get the information. A CRA is any person or entity which, for a fee, regularly engages in assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing a consumer report to third parties. The FCRA explicitly applies if the consumer report is to be used \"for employment purposes.\" 15 U.S.C. § 1681b(a)(3)(B). The occasion for obtaining a consumer report may be initial job application, or it may be at some juncture in the employment relationship. When consumer reports are used for any such employment purposes, the user of the service must certify to the CRA that it will comply with specific provisions of the FCRA requiring initial disclosure to the employee or prospective employee. The user also must obtain written authorization from the subject to get the consumer reports, and must provide not only pre-adverse action disclosure (if adverse action is contemplated based on information in the report) but also post-adverse action notification to the failed applicant or employee under scrutiny. The user also must certify that information from the report will not be used in violation of any applicable EEO law.

Also, a \"summary of the consumer's rights\" must be provided to the applicant or employee. It is typically the CRA's responsibility to get this done; however, an employer should not neglect this obligation.

What is most important for the employer to do at the threshold is to give the notice to the applicant/employee - in a separate document - that the employer may be requesting a consumer report. This notice has to be in a separate document from the employment application. Then, the applicant/employee must provide signed consent (which can be combined with the notice document) for the background check. The applicant/employee can be required also to provide name, address, SSN, driver's license number and state of issue, together with the signature. If the report contains information that prompts the employer to consider some sort of adverse action (e.g., firing or not hiring the person), then another disclosure has to be made to the individual before adverse action is taken. This disclosure is typically a form letter stating that the background check has been received and adverse action is being considered. Another summary of the individual's rights under the FCRA has to be given with the pre-adverse action disclosure.

The last step from the employer's point-of-view is giving the post-adverse action notification. If, for example, the decision is made not to hire the person because of some information in the consumer report, then notice has to be given plus another summary of the individual's rights under the FCRA.

Also important to remember is that there is a difference between a consumer report and an \"investigative consumer report,\" the latter being one obtained through personal interviews with neighbors, friends, or associates of the individual under scrutiny. If the employer wants that kind of report, then additional notice must be given to the applicant/employee in writing not later than three days after the date on which the report was requested. The subject may then request a complete and accurate disclosure of the nature and scope of the investigation being requested. Response is required not later than five days after the date on which the request for disclosure was received from the subject or the date when the report was first requested, whichever is later. If the employer obtains consumer reports or investigative consumer reports on incumbent employees, the FCRA still applies the same protocols and notice requirements, except in cases of employee misconduct. That is, the communication that would otherwise be a consumer report is not covered by the FCRA if the communication is made to an employer in connection with an investigation of suspected misconduct relating to employment or compliance with federal, state, or local laws, or any written policies of the employer.

These types of workplace investigations are referred to as \"employee misconduct investigations.\" Such investigations may be conducted by a third-party hired by the employer if the employer suspects the employee of:
_ misconduct relating to the employee's employment;
_ a violation of federal, state, or local laws or regulations;
_ violation of any pre-existing written policies of the employer; or,
_ noncompliance with the rules of a regulatory organization.

In such cases, the employer does not have to give prior notice and does not have to get permission to conduct the misconduct investigation. It also means that the employee will not receive a notice of rights, but, at the end of the investigation, if the employer decides to take some action against the employee, then he or she will receive the \"adverse action\" notice, again, legally required only after the action has been taken. The employee does have a right to receive a \"summary\" of the investigative report, but not the more detailed report that would include sources.

Noncompliance with the FCRA can result in fines and penalties, including civil and criminal lawsuits. It is a criminal misdemeanor to willfully violate the FCRA. On the civil side, the aggrieved party can recover damages plus liquidated damages. Even if the individual is unable to prove any actual damages, the violator may face a fine of up to $1,000 plus damages, attorney's fees, and costs.

Employers are well-advised to discuss employer obligations under the FCRA with counsel as there are serious consequences for violating the FCRA. A helpful publication, \"Using Consumer Reports: What Employers Need to Know,\" is available on the Bureau of Consumer Protection's website.

Other Legal Considerations
In addition to an employer's responsibility to conduct appropriate background investigations, under the federal Immigration Reform and Control Act (\"IRCA\"), it is unlawful for an employer to knowingly hire or continue to employ an alien who is not authorized to work in the United States. IRCA created the Form I-9 verification mechanism for employers in order to enforce compliance. Employers must complete a Form I-9 for every new employee shortly after the employee is hired. Employers must retain the Form I-9 for a period of three years after the date of hire or one year after employment is terminated, whichever is later. \"One is a lonely number,\" and it is the first threshold under IRCA. IRCA's Form I-9 requirements, as well as the prohibition of unauthorized employment, apply to all employers regardless of size, even employers with only one employee.

IRCA prohibits not only unauthorized employment, but also discrimination based on citizenship status and national origin. The anti-discrimination provisions of IRCA apply to employers with four or more employees. Thus, an employer who is not subject to Title VII (under 15 employees) will still be subject to IRCA's anti-discrimination provisions if it has four to 14 employees.

IRCA's prohibitions apply to discrimination in the hiring process or during the Form I-9 document review. Employers should not make assumptions based on ethnicity, language, country of origin, or immigration status, and should not adopt \"citizens only\" hiring policies.

Hiring policies should be applied consistently to all applicants regardless of these factors, and employers should not treat certain applicants differently because they \"look\" or \"sound\" foreign. To streamline the process, the U.S. Department of Citizenship and Immigration Services developed an online verification system called E-Verify. The E-Verify system compares information from an employee's Form I-9 with electronic records maintained by the Social Security Administration and the U.S. Department of Homeland Security. Basically an online version of the Form I-9, E-Verify provides employers with an easier and more reliable method to ensure a legal workforce. Although federal law presently does not require all employers to use E-Verify, North Carolina recently passed a law mandating the use of E-Verify for most employers. This law requires employers with 25 or more employees to register and begin using E-Verify to verify the employment eligibility of its new hires.

A. Preventing Employee Claims Through Effective Documentation.
Document! Document! Document! Written documentation is the best defense against challenged terminations. The document process should begin long before termination proceedings actually are undertaken. Discharge decisions based on documented deficiencies have many advantages:
1. Accuracy. Records made immediately following an event are more likely to be accurate. Memories fade and grow distorted over time. In addition, under certain circumstances, records of event when made fresh in the writer's mind can be admitted in court as evidence.

2. Preservation. A written record solves any problem the employer has later for explaining its discharge decision.

3. Believability. In a wrongful discharge suit, if the case boils down to the employee's word against his or her supervisor's, judges and juries tend to give the employee the benefit of the doubt. Written documentation made prior to the decision to terminate the employee, even if it is just the supervisor's notes, usually have more credibility than any statements made after the supervisor is accused of wrongful discharge.

4. Communication of Expectations. Sharing written performance evaluations with an employee gives the employee notice of the employer's expectations and indicates any weaknesses. Written warnings and memos tend to carry more weight in an employee's mind than oral reprimands and threats. Showing documentation to an employee at the time of termination also can deter an employee from an impulsive decision to file suit.

Due to the increasingly litigious nature of today's employer-employee relationship, employers must maintain consistent documentation of personnel actions. Wonderful personnel policies by themselves offer virtually no protection if an employer fails to also institute a comprehensive documentation system designed to ensure fair and accurate policy application. Crucial documentation areas are highlighted below.

1. Records of Discipline and Commendation
Anytime an incident occurs which might result in discipline, the appropriate supervisory or management official must properly document in writing what occurred. If a supervisor fails to write down what transpired, then the incident did not happen. Employers must avoid the situation where an employee should be terminated but nothing exists in his or her file to support that action. Simply put, documentation allows the employer to create a \"paper trail\" supporting all employment decisions.

Implementing a form for supervisors to fill out is the best way to substantiate disciplinary actions. The purpose of the form is to set forth, in an objective manner, the vital information about the employee's conduct that led to discipline (i.e., who, what, when, where, and why). Aside from noting this basic information, the form also should state how the employee's behavior negatively impacted the company. Finally, the form should include the steps that the manager or supervisor outlined with the employee for improvement and set forth what the result will be if the employee fails to comply with those steps (i.e., \"Further violation will result in discipline up to and including discharge.\") The appropriate supervisor or manager should review the completed forms with the employee, and the employee should sign the form to verify that he or she had the opportunity to review the contents. If the employee refuses to sign, note the refusal on the form along with the date.

Employers also should implement a commendation form to note the details of particularly positive employee actions. Similar to the discipline form, the commendation form should allow the supervisor to note the vital information regarding the employee's behavior and how it had a positive impact on the company. Supervisors, especially those who are quick to discipline for relatively slight offenses, should be strongly encouraged to use the commendation forms. Obviously, employees who are recognized for the good they do are far more likely to feel that they are valuable to their employers.

2. Records Regarding Reasonable Accommodations
Many employers do an excellent job of accommodating disabled employees (as required by the Americans With Disabilities Act) and/or employees with particular religious needs (as required by Title VII), but they generally do a poor job of recording the accommodations they provide. If an employee challenges his/her accommodation down the road, the employer does not want the only evidence of its good deeds to be the testimony of a human resources professional or a manager. To solve this potential problem, an employer should utilize individualized written accommodation plans. Each plan need only consist of a simple, short memorandum which:
a. Summarizes the discussions between the parties;
b. Identifies the accommodation agreed upon;
c. Provides a date upon which the parties will meet to review the accommodation for effectiveness; and,
d. Is signed by both the employer and the employee.

If the parties cannot agree on an accommodation plan, the employer should provide what it believes is a reasonable accommodation, present a memo to the employee documenting that accommodation, keep a copy of the memo provided to the employee, and attempt to keep the lines of communication open.

3. Performance Evaluations
At a minimum, every employer should conduct employee performance evaluations at least once annually. Such evaluations should be documented on carefully developed forms tailored to the workplace in question. The best evaluation forms will:

a. Be in the employee handbook or otherwise distributed to an employee long before his/her first evaluation so that the criteria are not a surprise at evaluation time.
b. Be user-friendly with lots of space to write comments.
c. Contain evaluation criteria that are job-specific and easy to apply.
d. Require evaluators to evaluate both the objective and subjective aspects of an employee's work performance and provide examples instead of simply ranking an employee on a numerical scale.
e. Require the employee's signature. The form should state that the employee is being asked to sign to acknowledge receipt of the evaluation, but his/her signature does not demonstrate that he/she agrees with everything in the evaluation.
f. Leave room for the employee to provide a written response.

B. Personnel Files/Documents and Retention.
The very first thing that an employee's or former employee's lawyer will do after filing suit against an employer is make a formal request for his or her client's personnel file. Accordingly, employers must maintain accurate, complete personnel files which exclude information that should be stored elsewhere.

1. What Should Be In A Personnel File?
Personnel files may include some or all of the following:
a. Personal and Pre-Employment Data (1) Job application and/or resume;
(2) Personnel information such as home address, social security number, marital status, emergency contact information, educational history, date of birth, etc.; and,
(3) Reference information from prior employers.
b. Position Data
(1) Offer letter;
(2) Employee handbook receipt;
(3) Job descriptions;
(4) Information regarding changes in employment status (promotions, salary increases, layoffs, etc.); and,
(5) Employee history forms.
c. Performance Data
(1) Evaluations;
(2) Commendation forms and letters;
(3) Merit awards;
(4) Attendance records;
(5) Disciplinary records; and,
(6) Training records.
d. Benefits and Compensation Data
(1) Benefit information and enrollment forms (unless such forms include information about medical conditions);
(2) Authorization for payroll deductions, direct deposit, withholdings, or garnishments;
(3) Basic payroll data, including wage and salary data; and,
(4) Request for employment verification for mortgages, etc.
The following materials should be maintained separately from personnel files:
(1) Medical records. Medical records should be kept in separate files under lock and key, and only those with a legitimate, business need to know the contents of the records should be allowed to access the information;
(2) Charges of discrimination filed with the EEOC or state or local human rights commissions and any documentation related to legal proceedings instituted by the employee against the employer;
(3) Workers' compensation records;
(4) Security reports on suspected internal misconduct;
(5) Results of drug tests;
(6) Documents regarding an employee's credit record and other pre-employment background checks; and,
(7) Immigration and Naturalization Service 1-9 Forms.

2. Do Employees Have A Right To Review Their Personnel Files?
In North Carolina, private sector employees have no general legal right to review their personnel files. Personnel files belong to private employers, and private employers may establish whatever policy they want regarding employees' access to their employment records.

However, if an employer allows one employee to review his personnel records, it must then allow all employees to do the same.

If employees are allowed access to their files and records, the employer should take certain steps to preserve the confidentiality and security of the records. Employees should only have access to their files or records in the area where the employer normally stores the materials, and a representative from the human resources department should remain present during all file reviews.

When an employer does grant employees access to their personnel files, it does not have to permit photocopying of records. If it allows photocopying, a representative from the human resources department should make the copies and record what employees receive.

Finally, the employer should not allow employees to change or add to their personnel files during a review. Instead, it should establish a procedure by which an employee may request a correction or addition, and a designated representative should be the one to make the changes or additions.

3. How Long Must An Employer Maintain Personnel Records?
Federal and state laws mandate the retention of various records relating to payroll, hiring, promotion, demotion, benefits plans, workplace injuries, collective bargaining agreements, and employment contracts. Employers also must keep files pertaining to employee identification, work and salary history, and citizenship. Almost all employers are covered by the federal record retention requirements. All employers in the State of North Carolina must comply with the regulations of the North Carolina Division of Employment Security and the North Carolina Workers' Compensation Law.

The following provides a general overview of the types of records that an employer must maintain and the periods for which they must be retained. This list is not meant to be exhaustive - you should direct specific questions regarding the scope of coverage or the length of retention to the appropriate agency or to legal counsel.

C. Employee Investigations--How to Do It Right
An employer's best course of action is to act promptly based upon a thorough investigation whenever a supervisor or member of management (1) observes something which may be serious misconduct by anyone employed by the company; (2) receives information that serious misconduct has occurred; or (3) receives a complaint from anyone claiming to be a victim of, or a witness to, serious misconduct. There are serious consequences to a bad investigation.

1. Advantages of timely investigation.
Prompt investigation will allow an employer to preserve witnesses' recollections of events before time erodes their memories, enable the employer to identify relevant documents for safekeeping, and permit the employer to make an early judgment as to whether there was misconduct, who committed it, and the seriousness of the offense. Moreover, if the employer determines that one or more employees left employment because of misconduct, a quick investigation will give the employer an opportunity to offer them re-employment and minimize any back pay, benefits, or other expenses or damages owing to them.

2. Plan the investigation.
i. Identify potential witnesses and their relationship to the matter under investigation.
ii. Identify documents to be reviewed.
a. All files on the accused, including personnel, department, workers' compensation, benefits, compensation, and grievance files.
b. Personnel files of other similarly-situated employees and witnesses.
c. Applicable sections of employee handbook (and accused's signed acknowledgment of receipt of handbook), policies, procedures, rules, and guidelines, as well as any documentary evidence that accused was made aware of them.
d. Pertinent communications to employees (e.g., memoranda, postings, etc.).
e. Witness statements, memoranda, or notes prepared by anyone about the incident(s) at issue.
f. Notes and files of managers, supervisors, and co-workers.
g. Other discrimination charges and lawsuits against the employer.
h. Records on treatment of similar incidents.
i. Complaints about the accused and other similarly-situated individuals.
iii. Prepare outlines for witness interviews to ensure they are thorough.
iv. Establish separate secure file for maintenance of notes and records of investigation.
a. Documents, other than working drafts, should not be destroyed once legal action has been threatened or commenced.
b. Instruct persons who may have relevant documents to keep them.
v. If time permits, discuss the claim or information with legal counsel
and/or, if appropriate, the employer's human resources manager.
a. Inform them of the nature of the complaint/alleged misconduct to be investigated.
b. Review the outlines for witness interviews.
c. Determine who should conduct the investigation.
d. Obtain guidelines regarding any unusual circumstances (e.g., accused is represented by counsel, potential for violent or irrational behavior, potential for retaliation or harassment claim by accused, need for corroborating witness, etc.).

3. Conduct Witness Interviews.
i. Learn the facts concerning the incident or activity in question, normally by speaking first to the person who brought the matter to the employer's attention and by speaking to each person who allegedly was a victim of the misconduct.

a. Before interviewing each alleged victim of the misconduct, ask the person to write down a detailed description of all incidents of misconduct and the names of all witnesses.
b. Consider whether these interviews should be conducted by two individuals (e.g., in a sexual harassment claim where the alleged victim of the harassment is a female, the interview may be more productive if one of the interviewers is a female).
c. Inform each person interviewed that the matter will be handled as discreetly as possible and ask them to do the same. However, do not promise confidentiality because the employer may need to use or disclose statements or information obtained during the investigation.
d. Conduct thorough interviews of the reporting witness and alleged victim(s). Do not give the impression that you do not believe them, but do not express an opinion as to whether misconduct occurred.
e. Take detailed notes during the interview.
f. At the conclusion of the interview, orally review with the interviewee the points contained in your notes to confirm their accuracy and determine whether the interviewee has anything to add. (Follow this process with all interviewees.)
g. Following these interviews, prepare a memorandum containing the information obtained during your interview. Send it with a cover letter to the interviewee, asking the interviewee to make any changes or additions so that it is accurate and complete, and return a signed copy to you.
(1) If the matter ultimately results in a lawsuit, these memoranda can be useful in refreshing a witness's recollection.
(2) Because key management witnesses may be terminated and become uncooperative or hostile, such memoranda will tend to keep their testimony truthful.
h. Inform any alleged victim who refuses to cooperate with your investigation that the employer cannot be expected to take appropriate corrective measures without the cooperation of the individual(s) claiming to have been a victim of misconduct and that such lack of cooperation may result in the investigation being inconclusive.
ii. After obtaining a reasonably good understanding of the problem from the person(s) who reported and was (were) subjected to the misconduct in question, speak to the person(s) who is (are) alleged to have engaged in the misconduct.
a. Before giving the accused a detailed account of the misconduct he or she has been accused of, ask the accused if he or she is aware of each incident (describing them only briefly and generally) and, if so, ask him or her to describe what happened. Frequently, this approach will extract admissions from the accused which he or she would not otherwise make if he or she knew specifically the incident with which he or she was accused.
b. Next, go through the detailed allegations made against him or her one-by-one and, as each allegation is read, ask the accused if it is accurate. If he or she acknowledges its accuracy, note that and move on to the next allegation. If he or she denies that the allegation is accurate, ask him or her to explain in what way it is not accurate.
c. Ask the accused to list the names of any persons who are likely to have relevant information.
d. Follow the same procedures listed above for the interviews of the reporting witness and alleged victim(s).
e. Occasionally, the accused will become uncooperative, ask to have a lawyer, or leave before the interview is concluded. When this occurs, inform the accused that this is an internal company investigation of alleged misconduct, that he or she is not entitled to have an attorney present, and that his or her refusal to cooperate in the investigation may be taken into account in determining whether the accusations against him or her are true. Moreover, refusal to answer reasonable, work-related questions is insubordination and may independently serve as a basis for termination.
iii. Speak with other persons who may have witnessed the misconduct in question, or whose names may have come up as having been subjected to similar activity or as having information concerning some aspect of the occurrences. If possible, obtain statements containing the relevant facts that are dated and signed under oath.

4. Analyze the Data.
i. Once the facts have been gathered as accurately as possible, meet with legal counsel and/or, if appropriate, human resources, to discuss which facts are undisputed and which are in dispute and any additional questions which should be asked or information which should be obtained.
ii. Consider not only the evidence and statements of witnesses, but also their reputation, motive to fabricate, and other conduct as reported by witnesses.

5. Determine the Outcome and the Action to be Taken.
i. Careful consideration of the results of the investigation may yield any of several conclusions — including the conclusion that the facts are inconclusive. Among the options to be considered are:
a. Discharge, if the misconduct was sufficiently serious or the accused already has a poor disciplinary record.
b. A strong written warning or other discipline to the accused making clear that bad judgment was used and that any recurrence will result in termination.
c. A written memorandum to the accused stating that the employer has not been able to determine whether any unlawful action occurred, but reiterating the employer's policy against whatever misconduct was alleged and making clear that any such activity in the future, if proven, will lead to discipline or discharge.
d. A written memorandum to the complaining employee, advising him or her of the outcome of the investigation and any disciplinary action to be taken, reiterating the employer's strong opposition to the misconduct in question, and urging the employee to come forward immediately if there is any recurrence of the activity.
e. Transferring one or both of the persons involved to different jobs or facilities to prevent any recurrence, keeping in mind that the determination of which of the two will be transferred is often a difficult and sensitive issue with potential legal consequences.

ii. Communicate the decision to all of the persons in question in a discreet and confidential manner, accompanied by a written statement to each person indicating the conclusion reached and the employer's opposition to the misconduct which was alleged (whether or not the investigation concluded that it occurred).

iii. If the results of the investigation are inconclusive, do not indicate that the employer concludes that no misconduct occurred.

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iv. Carefully document the steps taken, the decision, and supporting facts, and retain all written communications to the persons in question and all others who were reminded of the employer's firm opposition to the alleged misconduct.

6. Techniques for Interviewing Witnesses.
i. Confront each witness with the inconsistencies in his or her version of the facts and ask him or her to explain.

ii. Obtain specifics. Do not be content with generalities, such as \"Joe was uncooperative,\" \"Joe was not a team player,\" \"Joe was always harassing people.\"

iii. Record the specifics:
a. Times.
b. Dates.
c. Witnesses.
d. Documented injury to the employer's interests.
e. Prior warnings and counseling.
f. Dates and substance of prior training, instructions, or counseling.
g. Measurable or definable standards the accused was expected to meet.

iv. In investigations regarding specific events, cover all events which occurred during the relevant time frame in chronological blocks of time. Do not leave the time block until all details necessary to recreate the scene have been established. For each block of time cover:
a. Exactly what occurred.
b. When did it happen?
c. Where did it happen?
d. Who was present?
e. Who else may know of relevant information?
f. How did it happen?
g. What led up to it?
h. Who is to blame? Why?
i. Could it have been avoided?
j. Are there any notes, documents, or other evidence?

v. For each individual the witness identifies as having knowledge about any of the events, ask the witness:
a. What knowledge the witness believes the other individual has?
b. Was the individual present?
c. What is the some of the individual's knowledge?

vi. Whenever a potential witness exhibits the potential for hostility or inconsistency, it may be useful to obtain a sworn statement to pin the individual down on certain key points. For example, it is common for an employee to express the opinion that the employer or certain supervisors have mistreated or harassed or discriminated against the accused in the past, even though the witness has no information or knowledge about the alleged misconduct presently under investigation. Under such circumstances, a statement establishing the witness's total ignorance regarding the matter at issue can be useful if a lawsuit ensues.

vii. Before concluding the interview, give the witness an opportunity to disclose anything else he or she wants the employer to know.

viii. Listen carefully and ask follow-up questions. Do not become so focused on taking good notes or following your interview outline that you fail to absorb and think about what the witness is saying. Frequently, the most productive questions are follow-up questions not on the outline which are prompted by a witness's answer to a prior question.

ix. Ask open-ended questions that cause the witness to do most of the describing and talking. Avoid leading questions in which you are doing most of the describing and simply asking the witness to give \"yes\" or \"no\" or other brief answers to the version of the facts as you have described them.

7. Summary.
i. Do the investigation promptly.
ii. Be thorough.
iii. Keep an open mind.
iv. Use two investigators, if possible.
v. Especially as to claims of sexual harassment, do the investigation even if someone \"recants\" the allegations.

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