Conducting Effective Workplace Investigations
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Conducting Effective Workplace Investigations

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In this always-popular session, Andy Foose, vice president of Ethical Leadership Group and co-author of 7 Steps to Investigate Alleged Employee Misconduct, will provide insight into the critical......

In this always-popular session, Andy Foose, vice president of Ethical Leadership Group and co-author of 7 Steps to Investigate Alleged Employee Misconduct, will provide insight into the critical elements of investigating alleged employee misconduct.

Areas covered include:
The importance of thoughtful planning
Tactical decisions that investigators must make
Questioning technique
Credibility determinations and detecting untruthfulness
The importance of a thorough report
The power of case management data analysis

Presented by:
Andy Foose, Vice President, Ethical Leadership Group

More in: Business , Technology
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  • 1. CLIENT CONFERENCEHighlights and Critical IssuesConducting Effective InvestigationsCLIENT CONFERENCE
  • 2. CLIENT CONFERENCE7 Steps to Investigating Allegations of EmployeeMisconduct1. Decide if you should investigate2. Assign an appropriate investigator3. Plan, gather electronic, physical and documentary evidence4. Conduct and document your interviews5. Reach a conclusion and write a report6. Take appropriate corrective action7. Tie up the loose ends and manage documents
  • 3. CLIENT CONFERENCEFocus: critical issues and important errors Planning Searches for physical evidence Social media and other electronic communications Credibility determinations
  • 4. CLIENT CONFERENCEThe foundation for successPlanning
  • 5. CLIENT CONFERENCEThe Investigation of Lee SmithEthics Hotline Report #13Report date 3/11/2010Report method InternetOrganization name Bright Circle EnterprisesLocation Main officeAddress 1015 18th St.Blackacre, OH 44143Is the reporter an employee? Yes
  • 6. CLIENT CONFERENCEThe Investigation of Lee Smith (cont.)Ethics Hotline Report #13Issue type Violation of policyPerson identified asengaging in this behaviorLee SmithAssistant Vice President,Marketing DepartmentNature of violation AbsenteeismBreach of confidentialinformationReporter name Not given; wishes to remainanonymousReport filed 3/11/2010 at 1:53 pm.
  • 7. CLIENT CONFERENCEThe Investigation of Lee Smith (cont.)Lee is supposed to be managing us when really, he isgoofing off while supposedly “working from home.” Whenhe is here, he’s constantly throwing his weight around byshowing off how close he is to management and telling ussecret information he should not be sharing. We are sickand tired of this kind of conduct. It’s not fair to the teamhe is managing and the people he has to work with.
  • 8. CLIENT CONFERENCEOutlining and brainstormingI. Is Lee Smith excessively absent from work/working from home without permission and/orwithout his team knowing?A. Potential evidence1. Access records2. Lee’s calendar/his assistant’s calendar3. Travel records/receipts/reimbursement requestsB. Witnesses with relevant information1. Lee’s assistant2. Lee’s manager3. Lee’s subordinatesC. Policies/rules on attendance for exempt employees1. Policy manual2. Code of Conduct
  • 9. CLIENT CONFERENCELegal perilSearches for physical evidence
  • 10. CLIENT CONFERENCEHypothetical 1Apex Corporation’s employee handbook prohibits employees frompossessing illegal drugs in the workplace and from using companycomputers to view pornographic materials from the Internet. Thecompany’s policy is silent on whether the company has the right to searchits employees’ physical workspaces, but the policy does say theorganization will monitor and search company-issued computers. Eric, thehead of the marketing department, receives an anonymous tip that one ofhis employees, Chet, stores illegal drugs in his office and frequently viewspornographic sites on the Internet using his office computer.
  • 11. CLIENT CONFERENCEHypothetical 1, cont.One morning while Chet is at an all-day meeting, Eric uses his master key toopen Chet’s locked office-which Chet shares with another employee (who isalso attending the same meeting) – and looks around the office. When hesees nothing suspicious, he goes out to the company parking lot and looksthrough the windows of Chet’s car. Seeing nothing, Eric opens Chet’sunlocked car door and looks under the seat, where he finds a stash ofheroin.That afternoon, Eric asks his IT department to determine which web sitesChet has visited on his office computer. The IT department does a “remote”search of Chet’s computer, which indicates that Chet has accessednumerous pornographic web sites. Chet is terminated.
  • 12. CLIENT CONFERENCEHypothetical 1 – Polling QuestionChet then sues, claiming that Apex Corporation violated his right to privacy byconducting the searches. What is the result?A. Chet wins, both for the search for drugs and the search ofhis computer for pornographyB. Chet wins, but only on the drug search issueC. Chet wins, but only on the pornography search issueD. Chet loses on both counts
  • 13. CLIENT CONFERENCESearches for Physical EvidenceThreshold question: Does the person subject to the search have a reasonable expectation ofprivacy?o If not, then the search is lawfulo If they do, then additional questions must be asked/additional analysisconducted
  • 14. CLIENT CONFERENCESearches for Physical Evidence (cont’d)Additional questions and analysis (when there is a reasonable expectation ofprivacy): Is the search nonetheless justified?o How strong is the reason for being suspicious?o How important is it to determine whether or not the allegation is true?o How intrusive is the search?
  • 15. CLIENT CONFERENCESearches – the bottom lineSearches are complicated and thus risky from a legal perspective. Don’t conduct a search unless it has been approved by your legal teamo Let legal decide which legal battles it wants to take ono Some searches may be pre-approved• e.g., searches of employees’ personal bags in retail environments
  • 16. CLIENT CONFERENCEChange and uncertaintyAccessing employees’ electroniccommunications
  • 17. CLIENT CONFERENCEHypothetical 2An employee reports that several colleagues are making defamatorycomments about managers and other employees via (i) a private, password-protected MySpace chat room using their work computers; (ii) their personalemail accounts (such as Yahoo and Gmail) using work computers; and (iii) textmessages sent through their work-issued cell phones. Your code of conductclearly states that employees must respect the organization and fellowemployees and managers and their behavior must reflect your organization’svalues. Your policy also says you will “monitor electronic communications asnecessary to ensure compliance with the Code.”
  • 18. CLIENT CONFERENCEHypothetical 2, cont. – Polling QuestionWhich of the following behaviors would likely be lawful?(Choose all that would be lawful)A. Obtaining an employee’s login and password to the chat room and readingthe conversationsB. Pulling and reading emails sent from personal email accounts as they sit onyour organization’s server awaiting transmission to the webC. Confiscating the cell phones and reading the text messages stored on them
  • 19. CLIENT CONFERENCEElectronic ‘searches’ and monitoring Reviewing data that is stored on your own servers/devices generally is ok.o Stored Communications Privacy Acto Courts view data that is stored as just data—not communicationso The data is stored on the employer’s equipment.
  • 20. CLIENT CONFERENCEElectronic ‘searches’ and monitoring Capturing communications as they are being transmitted to the web isriskier—there is no clear law on this yeto Differs from use of employer’s email system since the data is not stored on theemployer’s equipment. Entering password-protected accounts/areas is risky, tooo How did you get the password?• Was coercion involved?o Also, some employees have the right to discuss terms and conditions of employment• NLRB cases
  • 21. CLIENT CONFERENCEChange and uncertaintyCredibility determinations
  • 22. CLIENT CONFERENCEHypothetical 3 – Polling QuestionTony complains that last Monday afternoon, he overheard his manager, Betty, offer abribe over the phone to an official from the country of Groq in order to win a contractwith the country’s presidential guard. You are assigned to conduct the investigationand you interview Betty, who categorically denies offering the foreign official a bribe,or even talking with the official recently. You cannot find any other witnesses whooverheard the conversation that Tony reported. Betty’s telephone extension shows acall to a private number in Groq last Monday afternoon.After you complete your investigation, could you legitimately conclude that Tony istelling the truth and that Betty offered a bribe to the foreign government official? Ifso, on what basis?A. YesB. No
  • 23. CLIENT CONFERENCECredibility Assessments Five credibility assessment factors:1. Inherent plausibility: Does the witness’s statement make sense?2. Demeanor: Totality of response: body language, voice, words chosen, etc.3. Corroboration4. Past record5. Motive Not just “gut feelings” The key: describing bases clearly in your investigative report
  • 24. CLIENT CONFERENCECredibility Assessments Natural (we are biologically equipped to assess credibility) Legitimateo Lay people asked to make similar determinations almost daily, when stakes are muchhigher—without any training or practice at allo Juries!1. Inherent plausibility: Does the witness’s statement make sense?2. Demeanor: Totality of response: body language, voice, words chosen, etc.3. Corroboration4. Past record5. Motive
  • 25. CLIENT CONFERENCE7 Steps to Investigating Allegations of EmployeeMisconduct1. Decide if you should investigate2. Assign an appropriate investigator3. Plan, gather electronic, physical and documentary evidence4. Conduct and document your interviews5. Reach a conclusion and write a report6. Take appropriate corrective action7. Tie up the loose ends and manage documents
  • 26. CLIENT CONFERENCEQuestions?