Your SlideShare is downloading. ×
Orlando 210876-v1-kat shrm presentation - solving the mystery behind conducting a  flawless  workplace investigation - an hr
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×
Saving this for later? Get the SlideShare app to save on your phone or tablet. Read anywhere, anytime – even offline.
Text the download link to your phone
Standard text messaging rates apply

Orlando 210876-v1-kat shrm presentation - solving the mystery behind conducting a flawless workplace investigation - an hr

87
views

Published on


0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
87
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
5
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. Solving the Mystery Behind Conducting a “Flawless” Workplace Investigation -An HR Attorney’s Perspective Kathryn A. Terry, Esquire 407-418-2300 kterry@fordharrison.com
  • 2. Search for the “Flawless” Investigation• What constitutes a complaint?• Do I have a duty to investigate?• Who should conduct the investigation?• How should the investigation be done?• Should an investigative report be prepared?• Are there common mistakes to avoid?• How much coffee have you had?• Will you answer all of my questions & not bill me?
  • 3. What Constitutes a Complaint?
  • 4. What Constitutes a Complaint?• Written or verbal communication from employee “specifically” complaining of discrimination, harassment or other objectionable conduct• Employee verbally states he/she has “generally” been treated badly or unfairly• Supervisor/ manager reports that inappropriate acts or misconduct have occurred• Complaints submitted through published policy• EEOC / FCHR Charge of Discrimination / Lawsuit
  • 5. What Constitutes a Complaint?• Subtle statements about workplace or supervisor• Offhand comment from employee directly to or overheard by supervisor about inappropriate conduct that has occurred in workplace• Comments made outside of workplace between “friends” (“just between us”, “off the record”)
  • 6. Duty to Investigate
  • 7. Duty to Investigate• Federal & state harassment/discrimination/safety laws impose legal duty on employer to investigate employee-related complaints (defenses & mitigation)• Can include off-duty conduct• “For Cause” terminations (in employment contracts or CBAs) require fair & through investigations• Obligations to shareholders may impose duty to investigate claims to determine or limit potential liability• “Right Thing To Do” - provide safe work environment (“happy employees are productive employees, productive employees are profitable employees!”)
  • 8. Selecting the Investigator
  • 9. Selecting the Investigator• Ability to understand business purpose of investigation & potential issues it may raise• Knowledge of policies & practices• Knowledge of applicable legal issues• Ability to take thorough, accurate notes which can be used as evidence• “Communication fit” with personalities & backgrounds of potential witnesses
  • 10. Selecting the Investigator• Interviewing skills, including the ability to identify follow-up questions when new facts or issues arise during interviews• Ability to determine when & when not to maintain confidentiality• Ability to determine credibility of witness
  • 11. Selecting the Investigator• Manager or supervisor• HR professional (“perfect witness”)• Private investigator or outside consultant• In-house counsel• Outside counsel (“CYA”)
  • 12. Conducting the Investigation
  • 13. Conducting the Investigation - Strategy• Outline scope & breadth of investigation• Prepare a timeline, include each step that will be taken & expected completion date• Recognize that chronology & order of interviews can either contaminate or enhance success of investigation
  • 14. Conducting the Investigation - Strategy• Prepare an outline of critical issues: - Ensures all issues regarding each witness will be addressed - Ensures a thorough & consistent line of questioning - Allows investigator to compare similarly situated witnesses from a standardized approach
  • 15. Conducting the Investigation - Documents• Rules, policies, & procedures• Personnel files (named individuals & “comparators”)• Memoranda or notes about incident• Complaints (internal or external)• Videotape (security)• E-mail, Internet, Blogs, Facebook, etc.• Other potential information sources
  • 16. Conducting the Investigation - Interviews• Disclose nature & purpose of investigation at beginning - Be candid when interviewing person who is focus of investigation - Explain to witness that company takes complaints seriously• Make appropriate disclosures (e.g., who you are, who you represent, why you are there, etc.)• Do not promise confidentiality!
  • 17. Conducting the Investigation - Interviews• Stress voluntary nature of participation - Make clear employee may terminate discussion at any time• No retaliation• Advise that no judgments have been made about any aspect of investigation, including validity of complaint• Just the Facts!
  • 18. Conducting the Investigation - Interviews• Begin with open-ended questions (“Funnel Approach”)• Transition to specific situation at issue• Give witness opportunity to provide additional information• Probe witness with follow-up questions, & ask about knowledge of any relationships between complainant & alleged wrong-doer or possible motivations for complaint or conduct at issue
  • 19. Conducting the Investigation - Interviews• Inquire if witness is hostile/friendly to either complainant or alleged wrong-doer• Ask witness if he/she is aware of any others who might have relevant information or evidence (witnesses)• Ask witnesses for additional information & evidence (photos, e-mails, calendar entries, & other evidence)
  • 20. Conducting the Investigation - Interviews• Be an active listener & critical thinker - “Does this make sense?” - “Do I understand exactly what happened?” - “Will the person reading my report understand exactly what happened?”• Use your time line to identify discrepancies between witness’ own story & that of others - challenge facts
  • 21. Conducting the Investigation - Interviews• Clarify basis for witness’ knowledge of a “fact” - How do they know? • Saw it? Heard it? Touched it? Smelled it? Tasted it? Was involved in it? - Distinguish between “no” & “I cannot recall.” - Document carefully for later review - generally don’t tape record interviews (witnesses are less forthcoming)
  • 22. Conducting the Investigation - Interviews• Prepare formal witness statements or take notes, as close to verbatim as possible, of facts recounted to investigation & provide witness with written statement of his/her interview to verify accuracy & make any necessary changes - Witness should sign & date statement - If this is not possible or practical, confirm accuracy of notes & obtain initials
  • 23. Conducting the Investigation - InterviewsSpecific to Harassment Complaints• Was conduct welcomed?• Does alleged action have purpose or effect of creating a hostile, offensive or intimidating environment?• Is it sufficiently “severe or pervasive” to alter conditions of alleged victim’s employment?
  • 24. Conducting the Investigation - InterviewsSpecific to Harassment Complaints• How often did alleged action occur?• How severe was alleged action?• Was alleged action physically threatening or humiliating?• Describe in detail (don’t accept “dirty talk” or “inappropriate language or conduct”)• Does alleged action unreasonably interfere with victim’s work performance? - Reasonable person standard (a jury of your employee’s peers)
  • 25. Conducting the Investigation - Interviews• Conclude interview - Repeat significant points & ask interviewee to confirm information is complete & accurate - Give witnesses opportunity to disclose anything else he/she thinks might be important - Counsel witness to keep matters discussed confidential - Invite witness to contact you if he/she recalls or discovers any additional helpful information after interview concludes
  • 26. Conducting the Investigation - Interviews(Credibility)• Demeanor - Body language - How did witness react to allegations? - Did witness appear credible overall?• Logic/consistency - How much detail did witness offer? - Did events differ from others interviewed? - Did witness’ version make sense?• Is there corroborating evidence?
  • 27. Conducting the Investigation - Interviews(Recording/Transcribing Interviews)• Witness may be uncomfortable & less forthcoming• Florida law requires informed consent of witness• Once recorder is on, state date, time & place of interview, name of participants and have witness confirm on tape his/her knowledge of & consent of the recording• Repeat & re-verify consent at conclusion of interview
  • 28. Conducting the Investigation - InterviewProblems• Fire them … just kidding! • Remind them of obligation to cooperate• Assure them of obligations of confidentiality/non- retaliation• Confirm that company can take action based only on information it is able to obtain during investigation• Interviewer’s notes should confirm refusal to cooperate & that disclosures were made to confirm consequences of refusal to cooperate (“delicate issue”)
  • 29. Preparing the Investigative Report
  • 30. Preparing the Investigative Report• Write as though every word will be second-guessed (opposing counsel, judge, &jury)• Prepare summary of facts • Include facts, not speculation or hearsay • Where there are discrepancies, give all versions• Reach a conclusion • Who do you believe & why• Take appropriate action to address conclusions• Factual findings (possibly recommendations)
  • 31. Preparing the Investigative Report• Include background of complaint• Summarize witnesses’ statements: evaluate their credibility (based on facts)• Make factual findings (vs. legal conclusions)• Mark “confidential” - maintain privileges• Recommend appropriate action, if charged with doing so - Direct to Counsel/Senior Management• Prepare final report in anticipation of discovery
  • 32. Preparing the Investigative Report• Were policies, guidelines, practices violated? If so, was violation serious or minor?• What has been done in the past with regard to similar violations (consistency)?• Are there mitigating or aggravating circumstances?• Creative alternatives?
  • 33. Post-Investigation Measures• Inform participants of resolution• Take steps to ensure that no retaliation is taken• Encourage complaining employee to bring all issues forward in future• Continue monitoring situation• Train managers/ employees as needed• Give significant raises to HR professionals! 
  • 34. Common Investigation Mistakes to Avoid
  • 35. Common Mistakes to Avoid While Conductinga Workplace Investigation• Taking sides - Investigator must remain neutral & conduct unbiased, objective investigation - Applies equally whether empathizing with complaining employee or defending conduct of alleged wrong-doer
  • 36. Common Mistakes to Avoid While Conductinga Workplace Investigation• Promising confidentiality - Breach of contract - Must be sure to explain confidentiality is qualified/limited - Treat as sensitive information - share only with legitimate need-to-know
  • 37. Common Mistakes to Avoid While Conductinga Workplace Investigation• Failing to Document - “Minor” complaints often not documented - Relevant documents must be properly dated & signed - Sanitize notes & report before finalizing - Be the “proud author!”
  • 38. Common Mistakes to Avoid While Conductinga Workplace Investigation• Failure to Actually Investigate - Do not simply ask witnesses to provide you with a written account of what happened - Important to have interactive interviews to assess credibility & immediately follow-up on issues raised - Prevents employees from improperly inserting their own subjective opinions & potentially biased beliefs into process
  • 39. Common Mistakes to Avoid While Conductinga Workplace Investigation• Failure to Make Conclusions - “He said - she said” type case, easy to simply state that no conclusion can be reached - Important to reach a conclusion based on best information available, credibility of witnesses, a determination of who is more likely to be telling the truth, etc. - Okay to determine “inappropriate conduct” without concluding “unlawful harassment” occurred
  • 40. Search for the “Flawless” Investigation• What constitutes a complaint?• Do I have a duty to investigate?• Who should conduct the investigation?• How should the investigation be done?• Should an investigative report be prepared?• Are there common mistakes to avoid?• How much coffee have you had?• Will you answer all of my questions & not bill me?
  • 41. Solving the Mystery Behind Conducting a "Flawless" Workplace Investigation -An HR Attorney’s Perspective Kathryn A. Terry, Esquire 407-418-2300 kterry@fordharrison.com