Test Identification Parade & Dying Declaration.pptx
Sexual Harassment Investigations
1. 31st Annual Employment Law Seminar
M A R R I O T T C I T Y C E N T E R H O T E L | S A LT L A K E C I T Y, U TA H
PA R S O N S B E H L E . C O MN AT I O N A L E X P E R T I S E . R E G I O N A L L AW F I R M .
Sexual Harassment Investigations
Maria O. Hart
208.562.4893 | mhart@parsonsbehle.com
2. 2
Every Internal Investigation is Unique
• Each requires significant judgment calls, including:
◦ When to conduct an investigation.
◦ Who should conduct the investigation.
◦ The scope of the investigation.
◦ What action to take at the conclusion of the investigation.
See Handout #1, Internal Investigations Flowchart
3. 3
Determine Whether an Investigation Is Necessary
• An internal investigation should generally be conducted in
response to any of the following:
◦ government investigations or enforcement actions;
◦ actual or credible allegations of wrongdoing committed by the
company or its agents; or
◦ a lawsuit against the company or one of its agents.
4. 4
Identify the Goals of the Investigation
• Severity
• Number of employees involved
• Rumor v. conduct
5. 5
Timing of the Investigation
• Investigations should start as soon as a triggering event
occurs to allow for a thorough inquiry and prevent further
exposure to damages. However, in deciding the timing of
the investigation, companies should also consider the
availability of:
◦ witnesses;
◦ documents and relevant information; and
◦ investigators.
See Handout #2, Complaint Form.
6. 6
In-House or Outside Counsel?
• In-house counsel must be protected by, and be able to maintain,
the attorney-client privilege and work product protection. Did the
in-house legal department:
◦ play a role in the underlying activity at issue in the investigation; or
◦ have a role in the company that may cause the attorney-client privilege
or work product protection to be lost.
• In-house counsel must be able to conduct a completely objective
investigation.
• In-house counsel must be familiar with the applicable laws, and
have the skills and investigative experience to conduct the
investigation.
7. 7
Advantages of Staying In-House
• Familiarity with corporate culture and the personalities
involved, as well as with employer rules and regulations and
how they are enforced, enabling the investigator to get
started more quickly.
• Uniformity in the investigative process, reducing the risk of
discrimination allegations.
• Credibility with employees, if the chosen investigator has
developed a reputation for fairness.
• Not having to comply with the Fair Credit Reporting Act
(FCRA)
8. 8
Advantages of Retaining Outside Counsel
• Objectivity & Independence. Retaining outside counsel
may give the investigation greater credibility, which can be
especially helpful when dealing with the government or the
board of directors.
• Outside counsel may provide a greater likelihood that the
investigation will be privileged because the line between
business and legal advice may be less blurred.
• Expertise. Outside counsel is often specialized in
conducting internal investigations.
9. 9
Attorney v. Non-Attorney Investigator
• Attorney-client privilege
• The choice of an outside attorney as investigator may
disqualify that attorney from representing the employer in
ensuing related litigation if a court deems the investigator a
fact witness.
10. 10
Should Law Enforcement Be Involved?
• Employee conduct that might prompt law enforcement
involvement includes, but is not limited to:
◦ Threatened or actual workplace violence by or against an
employee.
◦ Sexual assault by one employee toward another or toward a
member of the public.
◦ Theft.
◦ Insider trading.
◦ Bribery.
◦ Antitrust violations.
◦ Fraud.
11. 11
Additional Considerations…
◦ Are there affirmative legal obligations to report wrongdoing?
◦ What is the impact law enforcement's involvement may have on those accused
of wrongdoing, their families, and the remainder of the workforce?
◦ Potential for Defamation claims?
◦ Negative media?
◦ Impact on customers.
◦ Mitigation of Damages
◦ Law enforcement may require employee to cease its internal investigation.
◦ Production of documents, interviewing witnesses.
◦ The possibility that more than one government agency may become involved
(for example, local police, state police, the FBI, OSHA or a state equivalent, and
the Department of Labor or its state equivalent).
12. 12
Should you Hire Consultants?
• Why?
◦ Increase likelihood that potential problems may be detected; and
◦ Provide a basis for potential defenses will be discovered.
• What kind?
◦ forensic accountant;
◦ e-discovery consultants; and
◦ subject matter consultants.
• Involve your counsel.
13. 13
Outside: Who will Investigators Report to?
◦ General counsel or another in-house counsel
◦ An audit committee of the board of directors; or
◦ A special committee of the board of directors formed for this
purpose.
◦ Others?
• Moving supervision of the investigation away from company
management:
◦ gives further credibility to the objectivity of the investigation; and
◦ reduces the risk of any apparent conflict in conducting the
investigation.
14. 14
Establish and Preserve the Attorney-Client
Privilege and Work Product Protection
• Communications with counsel, written or oral, are privileged
if they are:
◦ confidential; and
◦ made for the purpose of obtaining legal advice.
15. 15
Increase the likelihood that information collected
during an investigation remains privileged by:
• requesting that all employees refrain from interfering with the
investigation and use their best judgment and discretion when
discussing the investigation with others;
• restricting anyone outside the attorney-client relationship from
having access to this information;
• carefully handling all documents that are created and collected
so that they are not shared or disclosed to anyone outside of the
investigation; and
• clearly marking documents created during the investigation as
"Attorney-Client Privileged Communication" or "Work Product."
16. 16
Additional considerations…
• Make communications in confidence and do not
disseminate them beyond those persons who need to know
their contents.
• Give certain warnings to employee interviews.
17. 17
Initiate the Document Review, if relevant
• Start the document review process (including collecting
documents) as soon as the company becomes aware of
credible allegations of wrongful conduct.
• IT Considerations
• Document holds (litigation hold)
• BYOD policies
• Do you have banners in place?
18. 18
Confidentiality
• Confidentiality is paramount to the success of an internal
workplace investigation.
• Complaining employees are much less likely to come
forward if they do not anticipate that their concern will be
addressed as confidentially as possible.
• Confidentiality can never be fully promised to all
interviewees, as some information about the allegations and
those involved must be disclosed for all witnesses to fully
share the scope of their relevant information.
• NLRA
19. 19
Should the Accused Employee Be Suspended or
Transferred Pending Completion of the Investigation?
Situations requiring this type of action typically include
alleged:
◦ Criminal activity.
◦ Ongoing harassment.
◦ Workplace violence.
◦ Anti-competitive activities (including disclosing confidential and
trade secret information to competitors).
◦ Fraudulent activity.
◦ Immigration fraud.
20. 20
Should the Complainant Be Offered Paid Leave or Other
Accommodation Pending Completion of the Investigation?
• The complainant may be so distressed:
◦ by the events that lead to the investigation, or
◦ by the reactions of the accused to the investigation,
◦ that an employer deems it appropriate to offer the complainant
paid leave or another accommodation pending completion of the
investigation.
• Whatever the accommodation, the employer should ensure
it only offers and does not force it on the complainant to
avoid a potential retaliation claim (see, e.g., Coleman v.
Donahoe, 667 F.3d 835, 846 (7th Cir. 2012)).
21. 21
Should Supervisory or Reporting Relationships Be
Modified Pending Completion of the Investigation?
• See Handout #6, Supervisor Guidelines.
• Where the conduct being investigated involves a supervisor
and the supervisor's direct or indirect report, an employer
should strongly consider modifying the relevant reporting
relationship pending completion of the investigation to avoid
further harassment or intimidation of the accused or
disruption to the work environment.
22. 22
Conduct Employee Interviews
• Develop a list of employees that should be interviewed.
• Consider the order of the interviews as well as the location.
• Have two people attend each interview.
• Remember to give Upjohn warnings at the start of all
employee interviews.
• Consider sending a formal letter requesting an interview.
See Handout #4, Model Questions for Conducting a Sexual
Harassment Complaint.
23. 23
What Should Each Witness Be Told?
• For each witness, consider in advance what information
about the allegations and investigation should be disclosed
(for example, identification of the complainant and specifics
of the complaint).
• Witnesses are highly likely to ask questions, so it is best to
prepare for their questions in advance.
• Generally, investigators should share only enough
information for the witness to share the witness's own
perspective.
24. 24
Introductory Comments at the Interview
1. Explain the process to the complainant and witnesses.
2. Identify clearly who the investigator represents.
3. No promise of confidentiality.
4. Request that employees cooperate fully in the
investigation and use their best judgment and discretion
when discussing the investigation with others.
5. Truth and candor required.
6. No retaliation.
25. 25
What Should be Asked in an Interview?
• Outline the topics for discussion.
• Non-leading, non-judgmental, and open-ended questions
are the most effective because they promote information
gathering.
• But, still get the specifics.
◦ Who?
What?
When?
Where?
Why?
How?
26. 26
What Should be Asked in an Interview?
• More specific inquiries:
◦ Who was present?
◦ What was said?
◦ What documents relate to this situation (corroborating or contrary)?
◦ Are the documents in your possession? If not, do you have access
to them?
◦ What other evidence do you have or know of?
◦ What other witnesses know about this situation?
27. 27
What Should be Asked in an Interview?
• More specific inquiries:
◦ Did the complainant report the issue? If so:
to whom;
when; and
what was said?
◦ Did the complainant prepare contemporaneous notes?
◦ Did the complainant prepare notes or another written summary
after the fact?
28. 28
What Should be Asked in an Interview?
◦ Accusatory questions that are likely to put the witness on the defensive.
Becoming angry or emotional during the interviews.
◦ Questions using specific legal terms or phrases (e.g., sexually harassed,
discriminated, constructively discharged, and so on).
◦ Conclusory questions or comments, such as: "When Employee X
sexually harassed you, what did he do?"
◦ Revealing the sources of your questions, unless absolutely necessary,
such as: "Ms. X stated that you stole our Employer's trade secrets and
shared them with our competition."
◦ Making predictions on the outcome of the investigation to any of the
interviewees, such as: "This conduct is outrageous; Employee X is going
to be fired for sure."
◦ Expressing agreement or disagreement with a witness's statements.
29. 29
Anticipating the Unexpected
• Reasons to stop the investigation, consider and digest the
newly revealed information, and adjust strategy:
◦ What if an employee refuses to participate?
◦ What if an employee wants to record the interview?
◦ What if an employee wants to bring along a friend?
◦ What if an employee wants to bring along an attorney?
◦ What if the witness raises new claims?
◦ What if the employee threatens the investigator?
◦ What if the interview takes longer than expected?
◦ What if something completely unexpected arises?
30. 30
Should the Employer Pay for Individual Counsel
for Employees?
• An employee should have separate individual counsel if
either:
◦ the employee has a potential for individual liability; or
◦ an actual or potential conflict of interest exists between the
company and the individual.
• Companies typically pay for an employee's individual
counsel if the employee was working in the scope of
employment when the issue under investigation arose.
31. 31
Joint Defense Agreements
• helps both the company and the individuals avoid working at
cross purposes;
• provides the company with access to an executive's
knowledge that could help the company prepare a better
defense; but
• limits the company's ability to reveal to a third party without
the executive's permission information that it obtains as part
of the joint defense agreement. This is a factor to consider if
there is a potential for a future privilege waiver (such as
cooperating with the government).
32. 32
Post-Interview Activities
• Organizing the Collected Information
• Making Credibility Determinations
◦ Nervousness.
◦ Insincerity.
◦ Internal inconsistencies in the facts reported.
◦ Changing presentations.
◦ General reputation for integrity.
◦ Past problems of a similar nature
• Making Factual Determinations
33. 33
Prepare a Final Report
• The final investigative report should contain:
◦ a summary of the issues raised;
◦ the relevant facts;
◦ the methodology used to conduct the investigation;
◦ the scope of the investigation;
◦ applicable law;
◦ its findings; and
◦ any recommendations.
34. 34
Determining the Response
• See Christina Jepson’s 2018 presentation, “Post-
Investigation: Discipline, Retraining, Coaching & Remedies.”
• Employer’s response is governed by the degree to which:
◦ Violation: The allegations are corroborated.
◦ No Violation: The allegations are disproven.
◦ Unsure: The employer is unable to reach a definitive conclusion
regarding whether the allegations are valid or invalid.
Ongoing monitoring.
A change in the reporting relationship.
Workplace training on the issue implicated by the investigation.
35. 35
Is Corrective Action Necessary?
• Review the company's policies
• Consider that enforcement of company policies helps
ensure future compliance, but overlooking illegal or
improper behavior may:
◦ send the message that the company does not take compliance
seriously;
◦ increase the risk of future problems; and
◦ impact how the government determines its course of action
36. 36
Communicating the Outcome
• At the conclusion of the investigation, the outcome must be
communicated to the complaining employee and the
accused.
• This communication should occur promptly following the
completion of the investigation and consultation with those
involved in the investigative process.
• The communication does not have to be and should not be
detailed.
37. 37
Communicating the Outcome
• The following communication to the complaining employee
could suffice:
"We appreciate the fact that you brought your concerns to our attention. Because the
facts you presented involved a violation of internal employer policy, we promptly
initiated an investigation into your allegations. Numerous individuals were interviewed
and additional evidence was reviewed. Our investigation largely corroborated the
allegations you made. Consequently, the Employer has imposed appropriate discipline
on Employee X, consistent with our policies and past disciplinary practices. We will
continue to monitor the situation carefully to ensure that there is no repeat of any of the
conduct you described. Of course, if you personally experience any of this conduct at
any time in the future, please report this situation to our HR Department immediately.
Similarly, if you experience any behavior that you consider to be retaliatory in any way,
please report this situation as well. Again, thanks for bringing this problem to our
attention."
38. 38
Consider Implementing Stronger Controls
or Company Policies
• Strengthen company policies if stronger controls would have
prevented the behavior at issue.
• Promote increased awareness of the regulations and the
prohibited behavior through improved employee training.
• Emphasize that the "tone from the top" is one that
encourages ethical behavior and compliance with laws and
regulations affecting the company's industry.
39. 39
Dos and Don’ts of the Investigation
• Explain the process to the complainant and
witnesses.
• Inform unionized employees that they may have
a union representative present.
• Be thorough and objective.
• Be accurate and fair.
• Initiate the investigation promptly.
• Explain confidentiality issues (and that
confidentiality cannot be guaranteed).
• Explain retaliation issues (particularly, that any
retaliatory conduct should be reported
immediately).
• Take time in interviews. If an interview is taking
longer than anticipated, notify subsequent
interviewees of any expected delay.
• Be courteous and professional toward witnesses,
including the complainant and accused.
• Ask non-leading questions and provide the
witnesses an opportunity to speak. Do not cut off
the witnesses.
• Ask the witnesses to identify corroborating
evidence (for example, other knowledgeable
witnesses, documents, and so on).
• Re-interview witnesses if necessary to, for
example, address newly disclosed information.
• If a new complaint is raised by a witness,
encourage that individual to file an internal
complaint.
• Document carefully.
• Destroy draft electronic versions of report
(with electronic version, write over).
40. 40
Dos and Don’ts of the Investigation
• Don't delay initiating the investigation.
• Don't promise confidentiality.
• Don't give a blanket instruction to
employees not to discuss the
investigation, unless there is a compelling
reason to do so.
• Don't disclose information, gather it.
• Don't answer questions regarding the
substance of investigation.
• Don't rush through interviews.
• Don't allow the union representative to
disrupt the interview.
• Don't allow the union representative to
answer for the witness.
• Don't get angry or emotional during
interviews.
• Avoid conclusory observations during
interviews.
• Avoid communicating legal conclusions
during interviews.
• Avoid ambiguous short-hand
characterizations during interviews.