Workplace Investigations in Louisiana: Who Should Conduct the Interview

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September 05, 2018
Author: Scott D. Wilson
Organization: Scott D. Wilson, A Professional Law Corporation

I. Who Should Conduct the Interview?
Choosing the right investigator is critical. The investigator should be credible, respected, regarded as fair and impartial, and knowledgeable about company policies and employment law issues. He must also have good interviewing skills, be well-organized, and be able to communicate well with various types of employees. He should also stand up well in court if called upon to testify, and he should be someone who can be trusted to maintain confidentiality. As some investigations will involve informal interviews, it is helpful to choose an investigator who can put witnesses at ease.

Before the interview, the investigator should ask, “Are you comfortable that I can be impartial through this investigation? If the answer is “yes,” the investigator should document the response; if it is “no,” then another investigator should be selected. Often the best investigators are from the human resources staff, although sometimes high-level managers may need to be involved if potential witnesses may include other management staff. If confidentiality is of utmost importance, an outside investigator should be considered.

If technical issues are involved, such as the existence or deletion of computer files, then experts in technical matters may need to participate.

Limiting investigators to employees of the company may provide protection from potential defamation claims from the employee under investigation, as employees investigating suspecting wrongdoing and owing corresponding duties with respect to the investigation are merely the company communicating with itself, and communications within this context may not constitute publication for purposes of a defamation claim.

“An intra-corporate communication, among officers or agents of the same corporation, and in relation to their duties for the corporation, is merely a communication of the corporation itself. It cannot be construed as being a communication to a third party.” Commercial Union Insurance Company v. Melikyan, 424 So.2d 1114 (La.App. 1 Cir. 12/21/82). In Melikyan, the Court supported its position with citation to Cangelosi v. Schwegmann Brothers Giant Supermarkets, 390 So.2d 196 (La. 1980), stating that in Cangelosi, “the Supreme Court found that statements made by and in the presence of other supervisory personnel, to an employee concerning an altered check, did not constitute publication, since the supervisory personnel were essential to the investigation.

We interpret this case to mean that statements between employees, made within the course and scope of their employment, are not statements communicated or publicized to third persons.” 424 So.2d at 1115. See also Marshall v. Circle K Corp., 715 F.Supp. 1341 (M.D.La. 6/22/89), in which the court granted summary judgment to the defendant on plaintiff’s defamation claim because the plaintiff could not prove publication. The plaintiff contended that Circle K published knowingly false statements in its records of separation, stating the reason for termination was failure to follow company guidelines and low sales. There was no evidence in the record to indicate that the information was circulated outside the defendant corporation, and the Court held there was therefore no “publication,” relying on Cangelosi and Melikyan.

Finally, the Court in Bell v. Rogers, 698 So.2d 749 (La.App. 2Cir.8/20/97), dealing with allegations of “misappropriate use of property” stated that: “statements between employees, made within the course and scope of their employment, are not statements communicated or publicized to third persons so as to constitute a publication.\" Marshall v. Circle K Corp., 715 F.Supp. 1341, 1343 (M.D.La.1989), affirmed, 896 F.2d 550 (5th Cir.1990). See also, Cangelosi v. Schwegmann Bros. Giant Supermarkets, 390 So.2d 196 (La.1980). Clearly, Rogers, Wood, Chambless and Hightower were within the course and scope of their employment in investigating the incident, preparing the written report and discussing the matter with Bell at the meeting. Chambless, as director of the Home Health Department, had knowledge and information regarding the transports that Bell had made and was told of the overpayments within the course and scope of her employment at St. Francis Medical Center. Rogers, Wood and Chambless testified that no other nurses, hospital personnel or third persons were present at the meeting. Although, in her affidavit, Bell attested that her co-workers were present, Bell has made no evidentiary showing as to whom the allegedly defamatory statements were published. Assuming solely for purposes of discussion that the statements were objectively defamatory, we do not find that Bell has demonstrated that she can produce sufficient evidence to prove the element of publication with convincing clarity at trial.

698 So.2d at 756.
It is important to consider that whoever conducts the investigation will likely be called as a witness in the event of a lawsuit. If the employer’s attorney conducts the investigation and will be a witness, then he cannot be attorney of record in the lawsuit. In EEOC v. Spitzer, Case Nos. 1:06cv2337, 1:08cv1326, 1:08cv1542, and 1:09cv255 (N.D.Ohio), the employer’s attorney conducted the investigation. The court declared a mistrial after learning that the employer did not turn over the attorney’s notes from the investigation of discrimination allegations during discovery. The judge sanctioned the employer $300,000 (for this and other reasons). The court noted that since the employer “relied heavily on the Faragher-Ellerth defense,” that the “heart of the defense would necessarily center around how [the employer] responded to [and] investigated complaints of harassment and discrimination. The judge alluded to the conflict of interest inherent when an employer asserts this defense and uses its in-house or usual outside counsel, who will likely be called as a fact witness at trial.

United States ex rel. Harry Barko v. Halliburton Company, et al., No. 1:05-CV- 1276 (D.D.C. Mar. 6, 2014): Harry Barko was an employee of Halliburton in Iraq in 2004 who claimed to have discovered abuses of the government contracting process. Barko brought a qui tam action under the False Claims Act against his former employers and several related companies. During discovery, the defendants attempted to withhold documents created in connection with internal investigations into alleged violations of the companies’ Code of Business Conduct (“COBC”). The investigation was conducted by non-attorney investigators who interviewed personnel, reviewed relevant documents, obtained witness statements, and drafted a COBC Report that was then transmitted to the Law Department.

The challenged documents contained significant admissions and findings of misconduct, which Judge Gwin characterized as “eye-openers” following an in camera review. Barko filed a motion to compel production of documents related to the internal COBC investigations. The court granted Barko’s motion, holding that the defendants could not withhold the documents as privileged under either the attorney-client or work-product doctrines.

The court reasoned that the COBC investigations were undertaken pursuant to regulatory law and corporate policy, rather than for the purpose of obtaining legal advice or in anticipation of litigation. In reaching its holding, the court applied a narrow interpretation of the attorney-client privilege, noting that the party invoking the privilege must show the at-issue communications would not have been made “but for” the fact that legal advice was sought. Similarly, the court restricted the scope of the work-product doctrine, finding that the privilege applies only where the documents were prepared “because of” the prospect of litigation. The court held that the COBC investigative materials and reports failed both tests. Specifically, the court concluded that government contracting regulations required contractors such as Halliburton to have internal control systems such as the COBC program. As a result, the COBC investigations were necessary to comply with government regulations and would have been conducted even if legal advice was not sought or there was no prospect of litigation.

The court noted several instructive factors. First, the investigation was presented as part of routine corporate compliance, and was not an Upjohn-style investigation “conducted only after attorneys from the legal department conferred with outside counsel on whether and how to conduct an internal investigation.” Second, the employees who were interviewed were never informed that the purpose of the interviews was to assist Halliburton in obtaining legal advice. Third, the confidentiality agreements that employees signed emphasized sensitive business implications of unauthorized disclosure, but did not say that the interviews were for purposes of obtaining legal advice. Fourth, the fact that the interviewers were non-attorneys was significant (although not dispositive); if attorneys conducted the interviews, employees may have been able to infer that the investigation was conducted for legal purposes. Finally, the timing of the investigation – five years before the lawsuit was unsealed – cast doubt on the argument that the documents were prepared in anticipation of litigation. On these facts, the court concluded that the internal investigations would have been conducted even if no legal advice had been sought and were not in anticipation of litigation.

Any company subject to regulations requiring internal control systems or even a company that voluntarily maintains such controls may be susceptible to an argument that an internal investigation was conducted because of a regulatory and/or corporate policy requirement. Accordingly, this decision raises concerns about the ability of companies to maintain the privilege over materials generated in connection with internal investigations, especially where those investigations are commonplace or routine, as opposed to unique to a particular legal issue.

II. Policies and Training for Interviews
It should be clear to employees that in order to bring a complaint and initiate an investigation, they will be required to sign a formal written statement. The statement should include as much detail as possible regarding the complaint, including the who, what, when, how, and why, and identify dates, times, witnesses, and locations. It is difficult for an employer to conduct an investigation based on a vague complaint of general harassment, without any details or specifics.

The employer should have published policies, in an employee handbook or policy manual, signed by the employees, prohibiting and expressing “zero tolerance”’ for discrimination, harassment, theft, vandalism, embezzlement, misuse of computer equipment, breaches of confidentiality, etc. There should also be procedures outlined for reporting perceived violations of these policies, either to supervisors or to human resources staff. The employees should not be required to report complaints about a supervisor to that supervisor. There should also be procedures for appeals of complaints or grievances, for when the employee is dissatisfied with the outcome.

The employer should also obtain from the employees written consent to search all workplace spaces, including offices, desks, desk drawers, bookshelves, areas around and under desks, in closets, to access computers and information on computers, and even personal property in the break room or parking lot.

Before an investigation is conducted, immediately upon notice of a situation that might trigger an investigation, the employer should review the personnel files of the complainant, the alleged harasser (or the accused, etc.), and all witnesses, in order to be thoroughly prepared.

Requesting confidentiality from participants can ensure a smooth, expeditious, and thorough investigation. If employees are able to discuss the matter with each other before being interviewed, employers often have more difficulty getting to the truth. Such discussions could also lead to witness harassment or intimidation. Also, the accuser’s and the alleged harasser’s privacy must be protected. It turns out that a blanket confidentiality policy may not be appropriate, however, and such matters must be considered on a case-by-case basis.

For example, one employer’s confidentiality policy warned employees that discipline, including termination, could result for discussing alleged discrimination with others. The EEOC (in an opinion letter from a district office to the employer) found this policy overbroad and a “flagrant” violation of Title VII, relying on the EEOC’s Enforcement Guidances on the anti-retaliation provision of Title VII, which states that “complaining to anyone, including high management, union officials, other employees, newspapers, etc., about discrimination is protected opposition.” In light of this EEOC letter, it may be wise to tailor the confidentiality provision to prohibit statements tipping off an accused, or to cover up or obstruct an investigation, or idle gossip, but not to prohibit complaints of discriminatory behavior, filing charges with the EEOC or a similar state agency, or testifying in connection with a protected complaint.

The NLRB has also addressed confidentiality provisions, in National Banner Health System. (The NLRA does not apply only in workplaces with unions. Section 7 of the Act affords employees the right to engage in protected concerted activity.) In Banner, a hospital employee opposed a direction that he felt violated hospital procedure. His supervisor reported him to HR, which judged him insubordinate and issued him a nondisciplinary coaching. The employee later received a bad performance review. He filed an uinfair labor practice charge with the NLRB stating that the hospital retaliated against him for engaging protected concerted activity. The Administrative Law Judge found no violation of labor laws. The NLRB affirmed those findings, but also found that the hospital’s confidentiality policy relating to investigations violated the NLRA, stating that a “generalized concern” about protecting the integrity of an investigation “is insufficient to outweigh the employees’ section 7 rights.” The NLRB states that employers must demonstrate a legitimate and substantial business justification that outweighs employees’ section 7 rights and “determine whether in a given situation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover-up.” The NLRB is not telling employers to abandon confidentiality policies regarding workplace investigations, but rather to revise them such taht they recognize the employer’s responsibility to evaluate the need for confidentiality on a case-by-case basis. Generally, employers should strive to apply the same practices to every employee. But where the employer must make decisions, as here, on a case-by-case basis, the best practice is to document what the employer does, why it decided to act as it did, and to maintain records and other evidence that supports its reasoning.

The employer’s published policies regarding workplace investigations and handling of complaints should include clear instructions regarding reporting complaints and appealing any findings or actions taken in connection with or as a result of an investigation.

III. Questioning Techniques
Importantly, in response to all complaints, the employer must act quickly. Not all workplace investigations require a formal approach. Sometimes an informal and relatively quick inquiry provides all the information needed to reach a conclusion and resolution. During the initial meeting with the complaining employee all the facts and issues should be identified, including who was involved, and what, when, where, why and how the incident happened. An informal approach may be appropriate where the matter: concerns an employee’s misunderstanding of company policy; a lack of communication between the complaining employee and his supervisor or a co-worker; needs no other facts to resolve the issue; or is amenable to informal resolution.

If additional facts are need, or others need to be interviewed, or documents need to be reviewed, or special expertise is required, then a more formal investigation is usually required. Initial assessments must be made regarding what policies/guidelines apply to the situation, what is the company’s obligation, how similar incidents have been handled in the past, who should be interviewed and in what order, what questions should be asked, whether special expertise is needed, whether the potential for violence exists, etc.

The employer should gather and review all relevant documentation, including personnel files, performance reviews, disciplinary records, and past investigation files of all involved employees. A list of questions should be compiled.

Start interviews soon after the situation arises. Maintain objectivity. Take good notes, or record the interviews. Hold the interviews in a private, quite location. Assure the witnesses you will do your best to protect confidentiality. Remind the witness to maintain confidentiality. Keep the interview on track. Do not interrupt witnesses while they are providing relevant information. Ask witnesses to identify anyone else with relevant information. Start with general questions, then move to more focused questions. Avoid confrontational or accusatory questions. Use silence after a question to encourage reticent witnesses to start talking. Be prepared with follow-up questions.

When interviewing the complainant, establish a comfort level with the investigatory’s impartiality, identify the issues and gather all the facts. Ask for written documents or records. Ask whether the employee’s work was affected. Ask whether there are witnesses, whether the incident was isolated or part of a pattern. Ask whether the employee has discussed the matter with anyone else. Ask for his suggestions for resolving the issue. Assure him there will be no retaliation, and that disclosure of any information will be limited to only those necessary for an investigation, and remind the employee that he is expected to do the same. Finally, ask the employee to put all information in writing and sign and date it.

When interviewing the employee who is the subject of the complaint, provide as many details as possible and identify the policies or guidelines that are implicated. Begin with open-ended questions. Ask for a chronological description of events. If the employee claims that the accuser is lying, ask why he thinks the accuser would do so. Take notes, writing down only the facts, and use direct quotes if possible.

IV. Public Sector Issues
Addressed in “Searches” section under “Employee Rights and Privacy”

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