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Webinar - Concluding a Procedurally Fair Workplace Investigation
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    Webinar - Concluding a Procedurally Fair Workplace Investigation Webinar - Concluding a Procedurally Fair Workplace Investigation Presentation Transcript

    • Closing Out the Investigation and Dealing with the Aftermath Lorene F. Schaefer, Esq. Win-Win Resolve, WinWinResolve.com ©2014 Win-Win Resolve Lorene F. Schaefer, Esq 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 Lorene F. Schaefer, Esq. All rights reserved
    • Today: 3rd in 3-Part Webinar Series Part 1 in 3-Part i-Sight Series -- Free recorded webinar available at http://i-sight.com/webinar- preparing-to-conduct-workplace-investigation/ Focus of 3-Part Webinar: Procedural Fairness Not Traditional Legal Analysis ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved Part 2 in 3-Part i-Sight Series -- Free recorded webinar available at http://i-sight.com/webinar- conducting-a-procedurally-fair-workplace- investigation/
    • 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 Lorene F. Schaefer, Esq. 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 Lorene F. Schaefer, Esq. All rights reserved
    • The Challenge Developing Protocols and Training Curriculums that Demonstrate Procedural Fairness ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. 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 Lorene F. Schaefer, Esq. 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 Tips Drafting the Report and Closing Out an Internal Investigation in a Manner that Demonstrates Procedural Fairness ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved
    • Purpose of Most Investigations ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved To advise decision-maker of following:  Did the alleged conduct, more likely than not, occur? AND/OR  Did the alleged conduct more likely than not, occur for an improper purpose?  If alleged conduct occurred, was it a violation of a policy?
    • A Word of Caution ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved Policy Determinations vs. Legal Determinations
    • Caution ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved  Policy Determinations -- Policies can be unclear. -- Requires investigator understand prior interpretations of policy.  Legal Determinations -- Can be deemed admission against interest. -- Avoid being a jury of one.
    • Caution ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved. Consider Standard Report Language: The findings in this investigation report address only whether the employer’s policies were violated and do not reach questions of law such as whether the alleged misconduct constituted a violation of applicable laws. or The investigator deems the employer’s policies relative to employee conduct to be stricter than applicable law. As such, any finding that the employer’s policies were violated does not equate to a finding that any law was violated.
    • The Report Opportunity to Demonstrate Procedural Fairness Or Not …. ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved
    • Reflect Procedural Fairness in Report ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved 4 Keys to Procedural Fairness Voice Neutrality Respect Trust  Impartiality Not Advocacy  Absence of Client Influence  Consistent Standards  Thorough Investigation  Thorough Analysis
    • Demonstrating Impartiality ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved Tips for Demonstrating Impartiality 3
    • Demonstrating Impartiality ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved  Acknowledge all points of view On the one hand …… On the other hand 1st Tip
    • Demonstrating Impartiality ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved  Use neutral references to parties Complainant and Respondent or Given Names vs. Subject or Accused or Perpetrator 2nd Tip
    • Demonstrating Impartiality ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved  Words matter Accused demanded her attorney be present. vs. Susan Smith sent an email asking that her attorney be “allowed to attend the interview.” 3rd Tip
    • Demonstrating Absence of Client Influence ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved Tips for Demonstrating Absence of Client Influence4
    • Demonstrating Absence of Client Influence ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved 1st Tip  Include in any retention agreement with investigator agreement that payment is in no way dependent on outcome of investigation.
    • Demonstrating Absence of Client Influence ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved 2nd Tip  Document cooperation of employer and absence of any restrictions on investigation or investigator. e.g. The {employer} cooperated fully in Attorney Schaefer’s investigation by providing timely and thorough responses to her requests for information, facilitating interviews and providing a quiet and private conference room for her use in conducting witness interviews. Similarly, all of the employees interviewed by Attorney Schaefer were cooperative.
    • Demonstrating Absence of Client Influence ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved 3rd Tip  Limit oral reports to status updates and administrative matters, e.g. scheduling of witness interviews, request for materials, etc.
    • Demonstrating Absence of Client Influence ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved 4th Tip  Limit employer’s edits of any written draft report to technical changes only, i.e. corrections of typos, spelling errors, etc.
    • Demonstrating Consistent Standards ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved Tips for Demonstrating Consistent Standards2
    • Demonstrating Consistent Standards ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved Determine Standard of Proof:  Preponderance of the Evidence -- Standard in most investigations. -- More likely than not. Greater than 50/50 chance allegation is true.  Clear and Convincing -- Rarely the standard in internal workplace investigations. Use if employer policy requires or applicable law, e.g. some whistleblower claims. -- Very high probability allegation is true.  Beyond a Reasonable Doubt -- Never used in internal workplace investigations as this is criminal standard. -- Evidence inconsistent with any other rational conclusion. 1st Tip
    • Demonstrating Consistent Standards ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved  Carefully frame the investigative question using the applicable standard.  Investigative questions are different than factual inquiries. The investigative question is the ultimate question about which the investigator will make findings. E.g., Did the {alleged conduct} more likely than not occur? Did the {alleged conduct} more likely than not occur for an improper purpose? 2nd Tip
    • Demonstrating Thorough Investigation ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved Tips for Demonstrating Thorough Investigation2
    • Demonstrating Thorough Investigation ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved 1st Tip  Include description of scope of investigation in report. E.g., Attorney Schaefer was charged with investigating the allegations made by Mr. X and making factual findings in the following areas: (1) Allegations regarding workplace conduct and the creation of a “hostile” work environment by Mr. X’s manager; (2) Allegations regarding the alleged “harassment” of Mr. X; and (3) Allegations regarding the alleged age discrimination” against Mr. X.
    • Demonstrating Thorough Investigation ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved 2nd Tip  Include an investigation overview in the report listing witnesses interviewed and materials reviewed.
    • Demonstrating Thorough Analysis ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved Tips for Demonstrating Thorough Analysis3
    • Demonstrating Thorough Analysis ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved  Organize Relevant Information Gathered, e.g., charts, timelines 1st Tip
    • Demonstrating Thorough Analysis ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved
    • Demonstrating Thorough Analysis ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved  Assess the Credibility of Information Gathered 2nd Tip • Inherent Plausibility: Is the information believable on its face? • Motive to Falsify: Did the person have reason to lie? Does the person have a bias, interest, or other motive? • Corroboration: Is there witness testimony or other information that corroborates the party’s testimony? • Lack of Corroboration: Is there witness testimony or other information that is inconsistent with witness statements? • Actual Knowledge: The extent of the witness’s opportunity to perceive the matters about which he/she provided statements. • Reputation: Does the witness have a reputation for honesty or dishonesty? • Attitude: Did the person cooperate when participating in the interview and/or providing information? • Demeanor: Did the person seem to be telling the truth or lying?
    • Demonstrating Thorough Analysis ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved 3rd Tip  Analyze!!! Avoid simply regurgitating facts.
    • Reflect Procedural Fairness in Close Out ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved 4 Keys to Procedural Fairness Voice Neutrality Respect Trust  Impartiality Not Advocacy  Thorough Investigation  Absence of Client Influence  Consistent Standards  Thorough Analysis
    • The Challenge ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved Sufficient Detail to Demonstrate:  Impartiality Not Advocacy  Thorough Investigation  Absence of Client Influence  Consistent Standards  Thorough Analysis vs. Confidentiality
    • Closing ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved Process, Process, Process Where confidentiality limits ability to share details of findings or any corrective actions taken focus on process: How investigator was selected Impartiality of investigation and investigator Absence of attempts to influence outcome How credibility assessments were made
    • Connect With Lorene Bonus! Receive Win-Win Resolve’s Tips for Mediating an Employment Lawsuit Follow Win-Win Resolve on Linkedin ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved
    • Upcoming Investigation Training by Lorene ©2014 Win-Win Resolve Lorene F. Schaefer, Esq. All rights reserved Two-Day Intermediate Workplace Investigation Training: Atlanta, GA Cincinnati, OH Las Vegas, NV Tampa, FL Washington, D.C. Scottsdale, AZ Chicago, IL Hartford, CT Denver, CO Philadelphia, PA New York, NY Dates & pricing available a 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