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Conducting Internal Investigations-Christine Binotti, Motorola Solutions

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Presentation delivered by Christine Binotti, Senior Compliance Counsel, Motorola Solutions, at the marcus evans Chief Litigation Officer Summit Fall 2016 in FL.

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Conducting Internal Investigations-Christine Binotti, Motorola Solutions

  1. 1. Internal Investigations: Best Practices & Lessons Learned Christine Binotti, Senior Compliance Counsel Motorola Solutions, Inc. Chief Litigation Officer Summit September 23, 2016 Christine Binotti, Senior Compliance Counsel Internal Investigations: Best Practices & Lessons Learned
  2. 2. Agenda • Why investigate? • Commencing an investigation • Conducting the investigation • Concluding the investigation • Evaluating the evidence and reaching a conclusion • Corrective Actions • Preserving your record
  3. 3. Why Investigate? Why is it important to conduct an investigation? Provides a defense • Did the employer take reasonable care to prevent the prohibited conduct? • Did the employer take prompt corrective action?
  4. 4. Good Investigations Save You... • Money • Reputational Damage • Staff effort, stress and distraction • Reduction in employee morale • Perpetuating bad behavior Successful lawsuits lead to more lawsuits!
  5. 5. When to investigate? • When is an investigation necessary? • When information comes to light - from any source - that relates to potential violations of the law and/or company policies • Can include formal complaints, ethics line calls, and even office gossip • Legal Obligations • Practical Considerations
  6. 6. Investigation Goals • What is the purpose of this investigation? • Reveal the truth? • Clear, defensible, well-documented resolution? • Don’t forget the big picture • Your obligation is to conduct a thorough investigation and document findings/corrective actions
  7. 7. Investigation Plan Checklist ✓ Who should do the investigation? ✓ What policies are implicated? ✓ Physical or written evidence to review ✓ Who should I interview, in what order, and where? ✓ Interview preparation ✓ Conduct interviews ✓ Additional investigation work ✓ Did a violation occur? Remedial action? ✓ Documentation of findings ✓ Follow-up
  8. 8. The Investigator • Who should conduct it? • Consider time and resources • Consider a third party to mitigate any perceived bias • Investigator must be... • Impartial • Credible • Thorough • Discreet • Effective as a potential witness in a trial
  9. 9. Know your Policies • Who does our policy protect? • Are employees aware of the policy? • Where should violations be reported? • Confidentiality obligations • Consequences for violating a policy • Retaliation
  10. 10. Gather the Evidence • Complainant’s Personnel File • Accused’s Personnel File • Policies and Related Training • Performance Management Documents • Prior Investigation Notes & Reports • Search Work Areas • Documents retained by Supervisor(s) • Other Physical Evidence
  11. 11. Conducting Interviews • Who to interview • Stick to the Facts • Be Prepared & Take T-I-D-Y Notes • Remember the Goal • Remain Impartial • Upjohn
  12. 12. Complainant Considerations • Prepare an introduction for the interview • “We take reports of wrongdoing very seriously. We will investigate thoroughly. We will keep this as confidential as possible and take appropriate action based on our findings. Retaliation is strictly prohibited.” • Protect the Parties (Complainant and Company) • Who else knows what happened? • Has anyone else had a similar experience? • Is there any physical evidence (i.e. notes, documents, etc.)? • Has it affected your job performance? • How would you like us to resolve this?
  13. 13. Assess the need for Interim Action • Necessary to prevent further misconduct or retaliation • Protect the Parties • Complainant: Consider schedule changes, transfers, paid leaves (only if voluntary) • Accused: Consider paid suspension or administrative leave (can be involuntary, but non-disciplinary) • Maintain Confidentiality
  14. 14. Interviewing the Accused • Prepare an introduction for the interview • “The purpose of this interview is to ask you about allegations of workplace misconduct made against you.” • Stress the importance of Confidentiality • Ask for a general response to the allegations • “This is your chance to tell your side of the story.” • Only an investigation - Nothing will be decided until all information has been collected • Warn against non-business contact with complainant • Warn against retaliation
  15. 15. Interviewing Other Witnesses • Stress importance of telling the truth • Consider the questions • Open-ended, factual questions • What were they told by the complainant/accused? • Other evidence or other witnesses? • Confidentiality is required • Warn against retaliation • They are not entitled to follow-up information
  16. 16. Assess the Evidence Is the evidence credible? • Believable on it’s face • Credibility of the original source • Look for Inconsistencies • Motive to Lie • Corroboration/Supporting Evidence • Past behavior
  17. 17. Are we done yet? Additional investigation work: • Circle back with complainant and accused • Re-interview parties and witnesses about any new information • Gather additional physical evidence • Consult with legal counsel • Organize notes and investigation file • Summarize evidence
  18. 18. Reaching a Conclusion Possible Investigation Outcomes: 1. Allegations Corroborated 2. Allegations Disproven 3. Investigation Inconclusive
  19. 19. Allegations Corroborated ● Inform Complainant & Accused ● Enact Corrective Measures ○ Stop misconduct ○ Ensure misconduct does not recur ○ Counter effects of misconduct on victim
  20. 20. Discipline Considerations Discipline Should be: ✓ Swift ✓ Consistent ✓ A punitive warning & an expectation of future conduct ✓ Properly documented!
  21. 21. Allegations Disproven • Inform Complainant & Accused • Investigate potential underlying issues • Provide assistance if necessary • Consider Training • Beware of retaliation claims!
  22. 22. Investigation Inconclusive • Inform Complainant & Accused • Ongoing monitoring • Change reporting relationship • Consider Training
  23. 23. How should I document my findings? • Policy Provisions & Employee Acknowledgements • Describe Original Complaint • Describe Nature of Violation/Conduct • Take T-I-D-Y Notes • Summary of Evidence • Investigation Findings and Conclusion • Corrective Action Taken • Follow-Up with Parties • Post-Investigation Inquiries
  24. 24. Avoid Documentation Pitfalls Q: What is the main cause of unfavorable litigation outcomes in employment cases? A: Lack of documentation Ask yourself: Can I prove it if she denies it? If not, do more! Preserve your record! Keep records with HR or Legal and restrict access
  25. 25. Pulling It All Together ● Don’t forget the goals of the investigation ○ Reveal the truth ○ Lead to defensible, well-documented resolution of the complaint ● Be prepared and follow your plan - no improvisation! ● Follow-through and Follow-up ● If done right, company will have a solid basis for taking action and will stay out of court Thank you!
  26. 26. MOTOROLA, MOTO, MOTOROLA SOLUTIONS and the Stylized M Logo are trademarks or registered trademarks of Motorola Trademark Holdings, LLC and are used under license. All other trademarks are the property of their respective owners. © (year of publication) Motorola Solutions, Inc. All rights reserved.

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