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Conducting Procedurally Fair Workplace Investigations Webinar
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Conducting Procedurally Fair Workplace Investigations Webinar

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Lorene Schaefer, Esq., shares tips for conducting procedurally fair workplace investigations. Visit http://i-sight.com/webinar-conducting-a-procedurally-fair-workplace-investigation/ to view the full ...

Lorene Schaefer, Esq., shares tips for conducting procedurally fair workplace investigations. Visit http://i-sight.com/webinar-conducting-a-procedurally-fair-workplace-investigation/ to view the full webinar recording.

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Conducting Procedurally Fair Workplace Investigations Webinar Conducting Procedurally Fair Workplace Investigations Webinar Presentation Transcript

  • Conducting a Procedurally Fair Investigation Lorene F. Schaefer, Esq. Win-Win Resolve, WinWinResolve.com ©2014 Win-Win Resolve All rights reserved
  • About Lorene Schaefer, Esq. Lorene Schaefer is the managing partner of Win-Win Resolve and has over 23-years of legal experience, including 14-years as in-house counsel at the General Electric Company. Win-Win Resolve is a boutique law firm focused exclusively on ADR and the nationwide administration of internal dispute resolution programs and compliance hotlines that are trusted by employees. She also conducts workplace investigations and is a registered mediator. Her book – Corporate Counsel’s Guide to Internal Investigations of Harassment, Discrimination & Retaliation – will be published this year by the ABA. Lorene is available nationwide to deliver customized on-site cross training of in-house legal counsel and to enhance the investigation skills of Risk Management and HR professionals. Lorene F. Schaefer, Esq. WinWinResolve.com ©2014 Win-Win Resolve All rights reserved
  • Today: 2nd in 3-Part Webinar Series Part 1 in 3-Part i-Sight Series -- Free recorded webinar available at http://i-sight.com/preparing-to-conduct-an-investigation-thank- you/ Focus of 3-Part Webinar: Procedural Fairness Not Traditional Legal Analysis ©2014 Win-Win Resolve All rights reserved
  • Recent Research  Ethics Resource Center (2013) Encouraging Employee Reporting Through Procedural Justice. Arlington, VA: Ethics Resource Center.  Ethics Resource Center (2012) Inside the Mind of a Whistleblower. Arlington, VA: Ethics Resource Center. Founded in 1922, the Ethics Resource Center is the oldest nonprofit organization devoted to independent research and the advancement of high ethical standards and practices in public and private institutions ©2014 Win-Win Resolve All rights reserved
  • Key Takeaways from Research Employees prefer to resolve their compliance concerns internally and privately with their employer. Employees will report their compliance concerns first internally to their employer if they perceive their employer’s investigation and resolution process as procedurally fair. Employees will accept the outcome of an employer’s internal investigation – even when the outcome is disappointing or legal constraints limit what the company can tell the employee about the outcome --- IF the employee perceives their employer’s investigation and resolution process as procedurally fair ©2014 Win-Win Resolve All rights reserved
  • The Challenge Developing Protocols and Training Curriculums that Demonstrate Procedural Fairness ©2014 Win-Win Resolve All rights reserved
  • What is a Procedurally Fair Investigation?  The company has established procedures for investigation and resolution of reports. Those established procedures are clearly explained.  The company consistently follows its established procedures.  The investigator is perceived as neutral and conducts the investigation in a neutral and unbiased manner.  The reporting and accused employee(s) are given ample opportunity to tell their side of what happened and in their own words to the investigator.  The investigator treats all investigation participants with dignity, respect, and concern for their well-being.  The investigator takes into account the issues raised by all parties in analyzing the information gathered. ©2014 Win-Win Resolve All rights reserved Source: Schaefer, Lorene. Corporate Counsel’s Guide to Internal Investigations of Harassment, Discrimination & Retaliation. ABA Book Publishing (scheduled for publication in 2014).
  • Lorene’s Practical Tips for Demonstrating An Internal Investigation is Procedurally Fair ©2014 Win-Win Resolve All rights reserved
  • Tips for Demonstrating Company has Established Procedures It Follows Consistently3 ©2014 Win-Win Resolve All rights reserved
  • Demonstrating Established Procedures ©2014 Win-Win Resolve All rights reserved 1st Tip Develop written investigation and resolution procedures that are tailored to the organization’s specific needs, risks and challenges and provide for an in-take risk assessment that avoids one-size-fits all investigations or resolutions.
  • Demonstrating Established Procedures ©2014 Win-Win Resolve All rights reserved Develop a communication plan to ensure you actively and repeatedly communicate to all constituents the organization’s investigation and resolution procedures. 2nd Tip
  • Demonstrating Established Procedures ©2014 Win-Win Resolve All rights reserved Ensure compliance through regular training of investigators and monitoring and auditing of investigations and resolutions of complaints. 3rd Tip
  • Tips for Demonstrating Investigator is Neutral3 ©2014 Win-Win Resolve All rights reserved
  • Demonstrating Investigator is Neutral ©2014 Win-Win Resolve All rights reserved At minimum, neither the complaining or accused employee(s) should have supervisory authority over the individual who conducts the investigation. Similarly, avoid selecting an investigator where a key fact witness has supervisory authority over the investigator. 1st Tip
  • Demonstrating Investigator is Neutral ©2014 Win-Win Resolve All rights reserved Consider separating out the fact-finding from any recommendations regarding corrective actions or resolution. 2nd Tip
  • Demonstrating Investigator is Neutral ©2014 Win-Win Resolve All rights reserved Compensation of investigator should in no way be impacted by investigator’s factual findings. 3rd Tip
  • Tips for Demonstrating Investigation Process is Neutral4 ©2014 Win-Win Resolve All rights reserved
  • Demonstrating Process is Neutral ©2014 Win-Win Resolve All rights reserved Investigator should share with reporting and accused employees and all witnesses interviewed an overview of investigator’s education and investigation training. 1st Tip
  • Demonstrating Process is Neutral ©2014 Win-Win Resolve All rights reserved Investigator should share with reporting and accused employees an overview of the investigation process, including an explanation of how credibility assessments will be made if necessary. 2nd Tip
  • Demonstrating Process is Neutral ©2014 Win-Win Resolve All rights reserved Consider developing a template to help ensure consistent framework used when credibility assessments are needed. 3rd Tip
  • Demonstrating Process is Neutral ©2014 Win-Win Resolve All rights reserved If possible, consider limiting the investigator’s role to investigation and fact-finding with recommendations and decisions on any corrective action and resolution made by separate individual(s). 4th Tip
  • Tips for the Investigator to Demonstrate Dignity, Respect, and Concern for the Well-Being of Reporting and Accused Employees 4 ©2014 Win-Win Resolve All rights reserved
  • Demonstrating Dignity, Respect & Concern ©2014 Win-Win Resolve All rights reserved Begin every meeting with a professional greeting and explain your “agenda” for the meeting. Thank them for taking the time to meet with you. 1st Tip
  • Demonstrating Dignity, Respect & Concern ©2014 Win-Win Resolve All rights reserved Conduct interviews in person if at all possible. Make eye contact and use body language that conveys respect. Do not call or text with others during interviews. 2nd Tip
  • Demonstrating Dignity, Respect & Concern ©2014 Win-Win Resolve All rights reserved Do not interrupt someone when they are speaking. Allow them to explain their answer in their own words without interruption. 3rd Tip
  • Demonstrating Dignity, Respect & Concern ©2014 Win-Win Resolve All rights reserved End every interview by asking if there is anything else the person thinks it would be helpful for you to know that you haven’t discussed. Thank them for their time and explain what will happen next. 4th Tip
  • Tips for Demonstrating Investigator Has Considered Issues Raised by all Parties in Analyzing Information 3 ©2014 Win-Win Resolve All rights reserved
  • Demonstrating Complete Analysis ©2014 Win-Win Resolve All rights reserved Always use investigators who are well-trained and who communicate effectively both verbally and in writing. 1st Tip
  • Demonstrating Complete Analysis ©2014 Win-Win Resolve All rights reserved Consider developing a template to be used by investigators documenting the 2nd Tip  relevant facts to be determined;  sources of information gathered related to those relevant facts;  consistent information gathered; and  conflicting information gathered.
  • Demonstrating Complete Analysis ©2014 Win-Win Resolve All rights reserved Consider developing a template to be used by investigators in making any credibility assessments necessary when conflicting information has been gathered. 3rd Tip
  • Upcoming Investigation Training by Lorene ©2014 Win-Win Resolve All rights reserved Third in 3-Part Webinar Series, June 5, 2014 at 2 p.m. EST. http://i- sight.com/webinar-series-conducting-workplace-investigations-before-during-and- after Intermediate Workplace Investigation Training, Sept. 22 -23, 2014. Atlanta, GA http://www.workplace-investigations-group.com/training/ Workplace Investigation Training, Oct. 22 -24, 2014. Atlanta, GA http://www.workplace-investigations-group.com/training/ Lorene is also available to consult with organizations about their investigation policies and procedures and to deliver customized on-site cross training of in-house legal counsel and to enhance the investigation skills of Risk Management and HR professionals. Call 800-830-1561
  • Questions? Thank you. Questions? ©2014 Win-Win Resolve All rights reserved
  • Thank-you for Participating If you have any questions, please feel free to email them to: Lorene F. Schaefer, Esq., Employment Attorney, Mediator & Workplace Investigator Lorene@WinWinResolve.com Joe Gerard, Vice President Marketing and Sales j.gerard@i-sight.com ©2014 Win-Win Resolve All rights reserved