In any kind of business, there is a chance that employers will be required to investigate one or more employees at some point for allegations of misconduct such as discrimination or sexual harassment. A properly conducted workplace investigation is not only legally required but can also go a long way in protecting companies and mitigating risks for future problems.
In this webinar, Diana Maier and Beth Arnese go over the key things to know about workplace investigations so that you can garner the maximum legal protection such investigations may provide.
Topics addressed include when to investigate, how to prepare for an investigation, how to interview witnesses, how to prepare a written report, what to do after the investigation, and overall best practices for investigations.
Investigating Misconduct: Reaching a Decision and Determining Root CausesCase IQ
So you’ve completed your workplace investigation and it’s time to pull all the information and evidence together to draw a conclusion and make a decision about what happened. But that’s not all; you will also want to find out why the misconduct occurred so that you can put into place measures to ensure it doesn’t happen again. Do you know where to start?
Investigations into allegations of workplace violence, harassment, sexual harassment, discrimination or employee misconduct must be conducted in a fair and impartial manner. In our changing legal landscape, businesses need to have a defined process as well as established policies to address violence and harassment in the workplace. Equally important is ensuring that complaints are objectively investigated in a consistent and effective manner. Failure to do so can result in significant legal cost and potential Human Rights Claims
"How To Conduct a Disciplinary Hearing" By Pearson Hinchliffe Commercial Law (Manchester Law Firm, England). Presentation delivered in July, 2010.
For: HR Professionals, Managers and anyone with employees.
Understanding the Disciplinary Action ProcessG&A Partners
Presented by – Monica Tovar, PHR, HR Advisor G&A Partners
The Disciplinary Action Process is a critical part of employee relations and is also an important communication tool. While it can be an effective strategy to modify unacceptable behavior or improve performance, it is also complex and requires expertise.
In this webinar, you will learn to discipline employees through verbal and written form. After this session, you will also be able to create an employee improvement plan to achieve desired results and get back on track to a successful and productive employee experience.
In any kind of business, there is a chance that employers will be required to investigate one or more employees at some point for allegations of misconduct such as discrimination or sexual harassment. A properly conducted workplace investigation is not only legally required but can also go a long way in protecting companies and mitigating risks for future problems.
In this webinar, Diana Maier and Beth Arnese go over the key things to know about workplace investigations so that you can garner the maximum legal protection such investigations may provide.
Topics addressed include when to investigate, how to prepare for an investigation, how to interview witnesses, how to prepare a written report, what to do after the investigation, and overall best practices for investigations.
Investigating Misconduct: Reaching a Decision and Determining Root CausesCase IQ
So you’ve completed your workplace investigation and it’s time to pull all the information and evidence together to draw a conclusion and make a decision about what happened. But that’s not all; you will also want to find out why the misconduct occurred so that you can put into place measures to ensure it doesn’t happen again. Do you know where to start?
Investigations into allegations of workplace violence, harassment, sexual harassment, discrimination or employee misconduct must be conducted in a fair and impartial manner. In our changing legal landscape, businesses need to have a defined process as well as established policies to address violence and harassment in the workplace. Equally important is ensuring that complaints are objectively investigated in a consistent and effective manner. Failure to do so can result in significant legal cost and potential Human Rights Claims
"How To Conduct a Disciplinary Hearing" By Pearson Hinchliffe Commercial Law (Manchester Law Firm, England). Presentation delivered in July, 2010.
For: HR Professionals, Managers and anyone with employees.
Understanding the Disciplinary Action ProcessG&A Partners
Presented by – Monica Tovar, PHR, HR Advisor G&A Partners
The Disciplinary Action Process is a critical part of employee relations and is also an important communication tool. While it can be an effective strategy to modify unacceptable behavior or improve performance, it is also complex and requires expertise.
In this webinar, you will learn to discipline employees through verbal and written form. After this session, you will also be able to create an employee improvement plan to achieve desired results and get back on track to a successful and productive employee experience.
Mastering Progressive Discipline and Structuring TerminationsPaul Falcone
Understanding the role of progressive discipline (i.e., corrective action warnings) in the employee performance improvement (and, when necessary, termination) process is critical for every manager and supervisor in corporate America. Unfortunately many unsuspecting employers fail to document performance and conduct infractions thoroughly and step perilously into the minefield of employment litigation without the proper record in place. This PowerPoint presentation complements Paul Falcone’s bestselling book 101 Sample Write-Ups for Documenting Employee Performance Problems (AMACOM Books, 2010) as well as the Corrective Action Notice (AKA Written Warning) Template available in Paul’s online Web Store at http://www.paulfalconehr.com/store/. The deck covers the critical areas of classifying infractions, the number of corrective action steps necessary, incident description writing tips, affirmative employer obligations to help rehabilitate the worker, and the importance of drafting consequences “with teeth” that will withstand legal scrutiny in the plaintiff litigation arena. (27 slides)
Presentation developed by author Paul Falcone - www.paulfalconehr.com.
Taylor & Emmet - Managing Absence MasterclassTom Draper
The employment law experts at Taylor & Emmet recently conducted a T & E Advance Managing Absence Masterclass. The event was fully booked and therefore for those of you who were unable to attend we have shared the slides from the event. If you have any questions on the subject of employee absence please contact Tom Draper on 0114 2184311.
Minimizing Exposure For Workplace Harassment And RetaliationTamsenL
This presentation is a good overview of harassment and retaliation law and provides practical guidance for minimizing employer liability associated with these issues.
Company Policy: Elements of Administrative Investigation and Progressive Disc...PoL Sangalang
Company Policy: Elements of Administrative Investigation and Progressive Discipline. By Atty. Apollo X.C.S. Sangalang. Presentation delivered on February 26, 2014 at AIM Center, Makati City, Philippines.
Documenting Your Workplace Investigation: Protect Your Case and Your Organiza...Case IQ
Investigations depend on collecting and analyzing evidence. Documentation is an important part of any workplace investigation. It is used to record who said what and when, to outline issues and investigation steps, to synthesize evidence and ensure nothing falls through the cracks. The final report is where all the pieces come together. But many investigators aren’t sure how to best document their investigations. They write notes without knowing what to record and what to leave out and cobble together reports with no plan or organization.
Join Meric Bloch as he outlines best practices for documenting workplace investigations.
GDPR Data Subject Rights - What You Need to KnowPiwik PRO
The General Data Protection Regulation (GDPR) comes into effect on May 25th 2018 and introduces a list of data subjects’ rights to protect internet users. Learn how data controllers can ensure these rights and avoid severe fines.
The infographic was created by the experts from Piwik PRO.
Sexual Harassment Prevention For SupervisorsBernie McCann
A professional training seminar for supervisors and managers to assist them in recognizing potential sexual harassment in the workplace, hostile environments and how to address this behavior in employees.
Absenteeism, Destructive Workplace BehaviourCG Hylton Inc.
• Types of absenteeism: culpable, innocent: making the distinction
• Addressing the root causes of absenteeism to determine if it is a symptom of stress, burn-out, addictions etc.
• Proactive strategies and guidance to rectify the behaviour
• Attendance policy: tips and strategies
• Ignoring it won't make it go away: how to communicate expectations, policy and confront the issue
• Determining when termination is appropriate
Mastering Progressive Discipline and Structuring TerminationsPaul Falcone
Understanding the role of progressive discipline (i.e., corrective action warnings) in the employee performance improvement (and, when necessary, termination) process is critical for every manager and supervisor in corporate America. Unfortunately many unsuspecting employers fail to document performance and conduct infractions thoroughly and step perilously into the minefield of employment litigation without the proper record in place. This PowerPoint presentation complements Paul Falcone’s bestselling book 101 Sample Write-Ups for Documenting Employee Performance Problems (AMACOM Books, 2010) as well as the Corrective Action Notice (AKA Written Warning) Template available in Paul’s online Web Store at http://www.paulfalconehr.com/store/. The deck covers the critical areas of classifying infractions, the number of corrective action steps necessary, incident description writing tips, affirmative employer obligations to help rehabilitate the worker, and the importance of drafting consequences “with teeth” that will withstand legal scrutiny in the plaintiff litigation arena. (27 slides)
Presentation developed by author Paul Falcone - www.paulfalconehr.com.
Taylor & Emmet - Managing Absence MasterclassTom Draper
The employment law experts at Taylor & Emmet recently conducted a T & E Advance Managing Absence Masterclass. The event was fully booked and therefore for those of you who were unable to attend we have shared the slides from the event. If you have any questions on the subject of employee absence please contact Tom Draper on 0114 2184311.
Minimizing Exposure For Workplace Harassment And RetaliationTamsenL
This presentation is a good overview of harassment and retaliation law and provides practical guidance for minimizing employer liability associated with these issues.
Company Policy: Elements of Administrative Investigation and Progressive Disc...PoL Sangalang
Company Policy: Elements of Administrative Investigation and Progressive Discipline. By Atty. Apollo X.C.S. Sangalang. Presentation delivered on February 26, 2014 at AIM Center, Makati City, Philippines.
Documenting Your Workplace Investigation: Protect Your Case and Your Organiza...Case IQ
Investigations depend on collecting and analyzing evidence. Documentation is an important part of any workplace investigation. It is used to record who said what and when, to outline issues and investigation steps, to synthesize evidence and ensure nothing falls through the cracks. The final report is where all the pieces come together. But many investigators aren’t sure how to best document their investigations. They write notes without knowing what to record and what to leave out and cobble together reports with no plan or organization.
Join Meric Bloch as he outlines best practices for documenting workplace investigations.
GDPR Data Subject Rights - What You Need to KnowPiwik PRO
The General Data Protection Regulation (GDPR) comes into effect on May 25th 2018 and introduces a list of data subjects’ rights to protect internet users. Learn how data controllers can ensure these rights and avoid severe fines.
The infographic was created by the experts from Piwik PRO.
Sexual Harassment Prevention For SupervisorsBernie McCann
A professional training seminar for supervisors and managers to assist them in recognizing potential sexual harassment in the workplace, hostile environments and how to address this behavior in employees.
Absenteeism, Destructive Workplace BehaviourCG Hylton Inc.
• Types of absenteeism: culpable, innocent: making the distinction
• Addressing the root causes of absenteeism to determine if it is a symptom of stress, burn-out, addictions etc.
• Proactive strategies and guidance to rectify the behaviour
• Attendance policy: tips and strategies
• Ignoring it won't make it go away: how to communicate expectations, policy and confront the issue
• Determining when termination is appropriate
BUSINESS LAW REVIEW- 2022: Defending White Collar Crime-101Financial Poise
While white collar crimes don’t usually carry the same stigma or penalties as violent crime, the consequences of a conviction, or even an allegation can be devastating. Leaving prison time aside, the business may also face investigation, prosecution and possibly, the risk of reputational damage, financial loss and unwanted exposure.
As governmental enforcement of laws against those accused of white collar crime increases, companies need to understand how to avoid unknowingly acting in ways that may be unlawful, how to prevent and detect potential employee misconduct, and how to react if misconduct does occur.
Part of the webinar series: Business Law Review 2022
See more at https://www.financialpoise.com/webinars/
The three-steps guide for successful litigation procedures. Information about third-party litigation funding included. Worthwhile literature provided by Redress Solutions, London, UK.
This class will provide students with a defined roadmap and checklist of steps one may take when presented with the specter of trade secret related significant business threats. Important subjects covered in the class include defining “win” scenarios upfront to avoid mission creep, working with outside counsel and a 3rd party computer forensic expert, the identification, preservation and analysis of evidence to inform appropriate actions, special considerations for handling of smartphone based evidence, leveraging evidence derived from smartphones, reasonable steps to take to preserve attorney-client communication security, and the acquisition of phone and text records via a subpoena.
CASE INFORMATIONFind a court case where the company indicated t.docxcowinhelen
CASE INFORMATION:
Find a court case where the company indicated they were surprised the employee charged was a fraudster (use the *KU library (Westlaw) to find the court case).
ANALYSIS REQUIREMENTS:
Based on your readings, literature, and/or the Fraud Examiners Manual analyze the case and include the following in your discussion:
What type of fraud schemes took place in this case?
Analyze the internal controls of this company for "red flags".
Identity why you think the company did not suspect this person was a fraudster and what policies would you put in place for this company to stop this fraud in the future?
WRITING REQUIREMENTS:
· 3-5 pages (not including title page, abstract, or reference page)
· Proper APA format
· Minimum of 3 scholarly sources (not including your textbook)
GRADING REQUIREMENTS:
Click on link to view grading requirements
AUGHT IN THE CROSSFIRE: THE (SUPPOSEDLY) INNOCENT ATTORNEYS WHO REPRESENT ACCUSED FRAUDSTERS
Editor's Note:This article is the second in a series calling for a more aggressive response to bankruptcy and other fraud. The first in the series was initially published in the May 2009 issue, entitled “A Call to Arms: A Bankruptcy Fraud Superfund.”
In law school, we were taught that when representing a person accused of committing a crime, we're never to ask, “did you do it?” From “innocent until proven guilty” to “representation for all,” the axiom was not to know whether the client “did it,” but instead to protect the rights of the accused, even if they did do it. While this ideology is arguably consistent with the will of our forefathers, recall that the context is criminal defense. What's more, the ideology is not without obvious limits in its application, criminally or civilly. Based on my personal experience, many civil lawyers honor the principle of “don't ask, don't tell” to an extreme--and in so doing, have exceeded the limits and crossed the boundary line of ethical conduct.
Before digging too deep into the ethics, though, let's consider a particular criminal defense attorney. The case was an involuntary bankruptcy under §303, and my creditor client successfully obtained the appointment of a gap trustee, more elusive than The Loch Ness Monster herself. The gap trustee and my client then secured an ex parte order for an unannounced inspection of the target's offices. After forcing the target and his staff out the door for a spell, the target hurriedly brought in both bankruptcy and criminal defense counsel. At the conclusion of the hearing that resulted in the denial of a motion to reconsider the judge's order to allow the inspection, the just-hired criminal defense counsel quipped in the hallway outside the courtroom, “sheesh, I guess you guys don't have due process in bankruptcy courts.”
Well, yes, as a matter of fact we do, but when counsel starts going on about how innocent his client is, how we're “making a big mistake” because his client has no money and that.
Introducing New Government Regulation on Toll Road.pdfAHRP Law Firm
For nearly two decades, Government Regulation Number 15 of 2005 on Toll Roads ("GR No. 15/2005") has served as the cornerstone of toll road legislation. However, with the emergence of various new developments and legal requirements, the Government has enacted Government Regulation Number 23 of 2024 on Toll Roads to replace GR No. 15/2005. This new regulation introduces several provisions impacting toll business entities and toll road users. Find out more out insights about this topic in our Legal Brief publication.
PRECEDENT AS A SOURCE OF LAW (SAIF JAVED).pptxOmGod1
Precedent, or stare decisis, is a cornerstone of common law systems where past judicial decisions guide future cases, ensuring consistency and predictability in the legal system. Binding precedents from higher courts must be followed by lower courts, while persuasive precedents may influence but are not obligatory. This principle promotes fairness and efficiency, allowing for the evolution of the law as higher courts can overrule outdated decisions. Despite criticisms of rigidity and complexity, precedent ensures similar cases are treated alike, balancing stability with flexibility in judicial decision-making.
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
Military Commissions details LtCol Thomas Jasper as Detailed Defense CounselThomas (Tom) Jasper
Military Commissions Trial Judiciary, Guantanamo Bay, Cuba. Notice of the Chief Defense Counsel's detailing of LtCol Thomas F. Jasper, Jr. USMC, as Detailed Defense Counsel for Abd Al Hadi Al-Iraqi on 6 August 2014 in the case of United States v. Hadi al Iraqi (10026)
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
ALL EYES ON RAFAH BUT WHY Explain more.pdf46adnanshahzad
All eyes on Rafah: But why?. The Rafah border crossing, a crucial point between Egypt and the Gaza Strip, often finds itself at the center of global attention. As we explore the significance of Rafah, we’ll uncover why all eyes are on Rafah and the complexities surrounding this pivotal region.
INTRODUCTION
What makes Rafah so significant that it captures global attention? The phrase ‘All eyes are on Rafah’ resonates not just with those in the region but with people worldwide who recognize its strategic, humanitarian, and political importance. In this guide, we will delve into the factors that make Rafah a focal point for international interest, examining its historical context, humanitarian challenges, and political dimensions.
DNA Testing in Civil and Criminal Matters.pptxpatrons legal
Get insights into DNA testing and its application in civil and criminal matters. Find out how it contributes to fair and accurate legal proceedings. For more information: https://www.patronslegal.com/criminal-litigation.html
1. parsonsbehle.com
May 9, 2023 | Sheraton Salt Lake City Hotel
Conducting Effective
Workplace Investigations
Mark D. Tolman Karen Clemes
VP & Associate General Counsel,
HealthEquity, Inc.
2. 2
This presentation is based on available information as of May 9, 2023,
but everyone must understand that the information provided is not a
substitute for legal advice. This presentation is not intended and will
not serve as a substitute for legal counsel on these issues.
Legal Disclaimer
4. 4
Why Should You Investigate?
A timely investigation can prevent minor problems from becoming
major problems.
Failure to address concerns and complaints leads to disruption and
discontent.
Demonstrates commitment to maintaining a safe and productive
workplace.
Get to the right result when there are factual disputes.
Employees less likely to sue or go to administrative agency if you
investigate.
4
5. 5
Why Should You Investigate? (continued)
In harassment cases, investigations are a key element of a defense.
The U.S. Supreme Court explained in the companion cases of
Ellerth and Faragher that an employer is not liable for alleged
harassment when it has exercised reasonable care to prevent and
promptly correct harassing behavior.
To avail itself of this defense, an employer must (1) adopt a strong
anti-harassment policy, (2) thoroughly investigate concerns about
harassment, and (3) take prompt remedial action.
5
7. 7
Why Should You Take the Time to Conduct an
Effective, Thorough Investigation?
Evidence of a flawed or cursory investigation can support a finding of
pretext to support a discrimination/retaliation case.
A jury may infer discriminatory intent when an employer “fail[s] to
conduct what appeared to be a fair investigation….”
-- Trujillo v. Pacificorp, 524 F.3d 1149 (10th Cir. 2008)
7
8. 8
Impact of Poor Investigation
J. Castellucio (“C.”), former IBM vice president, awarded $4.1
million in 2014 after a federal jury found the 61-year-old was
wrongfully terminated because of his age
Before and after trial, magistrate judge harshly criticized
IBM’s internal handling of age discrimination complaint that
C. had taken to HR before he was let go
HR investigator concluded C. was treated fairly
Judge said HR report was one-sided and blocked IBM from submitting it as evidence
at trial, noting it failed to include evidence of his favorable performance reviews
Judge suspected “the purpose . . . was more to exonerate IBM than to determine if C.
was treated fairly”
SHRM: “The ruling is one example of how a poorly conducted internal investigation
can cost a company financially and damage its reputation, not to mention the
reputations of the HR professionals tasked with overseeing such a probe.”
9. 9
Impact of Poor Investigation cont.
“The IBM case should serve as a wake-up call to [investigators] across the United States,” says
Lorene Schaefer, an employment lawyer and workplace investigator in Atlanta. “In today’s world,
being able to conduct an effective internal investigation that will withstand legal scrutiny is a core
competency for [investigation] professionals.
“The public and employees and your jury members expect more today. They’re more
sophisticated,” says Schaefer, founder of Win-Win Resolve . . .
“On the other hand, a properly conducted investigation—one that is prompt, thorough and
impartial—can help defend a company should a lawsuit be filed later. By ensuring a fair
investigative process, [investigators] also can help build morale and trust among employees.”
“Some people will not be happy regardless of the decision you make,” says Denise M. Domian,
senior vice president of HR at The Bon-Ton Stores Inc. . . . But trying to make sure we are going
about it in a way that is sensitive and meaningful can help diminish their dissatisfaction. Even if
they’re not happy with the answer, at least they feel they’ve been heard.”
11. 11
When Is an Investigation Needed?
1. When you become aware of employee conduct that, if true, could
create legal exposure for the company, like:
a. Discrimination/harassment – race, color, religion, sex, national origin,
citizenship, age, disability, veteran status, retaliation, etc.
b. Retaliation/whistleblower – i.e., allegations that an employee has been
punished for reporting possible discrimination/harassment or a legal
compliance issue
c. Violations of other legal obligations – securities, financial, tax fraud, etc.
12. 12
When Is an Investigation Needed? cont.
2. When you become aware of employee conduct that violates
company policies or is creating problems within the company, like:
a. Employee theft or dishonesty
b. Unprofessionalism/Dereliction of duties
c. Confidentiality breaches
d. Workplace accidents and potentially unsafe conditions
Conducting sound investigations prior to termination will help you
resolve factual disputes and provide solid evidence that your reason(s)
for termination are not a pretext for discrimination or retaliation.
13. 13
How Do You Become Aware an Investigation Needed?
1. Your own observations
2. Rumors of inappropriate/unlawful behavior
3. Employee complaint/report
4. Customer or third-party complaint
5. Notification through established company procedures, e.g., a
hotline, online portal.
6. Any other way you learn of a possible problem (i.e., be flexible
and don’t ignore complaints when not filed through a formal
process).
Develop policies for tracking and triaging all complaints so
nothing falls through the cracks.
15. 15
Interim Safety/Preservation Measures
Are there any interim measures that need to be implemented
against any individuals to ensure no misconduct during
investigation?
o Against whom?
o What measures?
o Separate the complainant and respondent?
Are there any preservation of evidence measures
needed to prevent the magical “disappearance”
of evidence?
o What measures?
o For what evidence?
17. 17
Select the Right Investigator
Investigator should have working knowledge of the applicable law and
company policy.
o Importance of issue spotting.
Investigator should be trained and experienced.
o Trained in how to conduct effective investigations.
Investigator should be impartial.
o No tie to either party (not parties’ supervisors or managers).
o Autonomy -- the respondent should have no supervisory authority over the
investigator.
o Maintain neutrality.
o Separate from the decision-maker (i.e., not the judge, jury, and executioner).
18. 18
The Right Investigator
Investigator should be a good communicator (verbally and in
writing) with strong interviewing skills (e.g., ability to develop
rapport, ability to follow up without reliance on rigid outline).
Investigator should be organized.
Investigator must have credibility (e.g., no conviction record, no
history of termination for misconduct or incompetence).
Investigator should be able to testify competently and hold up in the
witness chair.
19. 19
The Right Investigator
Options:
Senior manager (but not the direct supervisor) – not ideal
Human resources director or other in-house HR professional
In-house counsel
Outside counsel
Independent third-party investigator or consultant
20. 20
Internal v. Outside Investigator
Internal Investigation Advantages
o No cost
o Greater familiarity with the company and its policies and culture
o Less interference with the ordinary course of business
Internal Investigation Disadvantages
o Lack of objectivity
o Witness distrust of “company” investigator
o Time commitment
o May not ask tough questions
o Lack of employment law knowledge and/or experience as investigator.
21. 21
Internal v. Outside Investigator
External Investigation Advantages
o Expertise in employment law elements and investigations – well
analyzed/drafted reports
o Independence
o Credibility
o Option of attorney-client privileged investigation
External Investigation Disadvantages
o Cost
o Loss of employer control
o Less familiarity with the company and its policies and culture
o Distrust of outsiders
22. 22
Lawyer as Investigator: Privilege Concerns
An investigation is not protected by the attorney-client privilege just
because a lawyer investigates.
If a lawyer’s work is purely fact-based (i.e., gathering facts, reaching
conclusions about disputed factual issues, etc.), and is not for the
purpose of providing legal advice, that work likely is not privileged.
Consider also that you may want to disclose your investigation
report in response to a claim (i.e., to show prompt remedial action,
etc.), and doing so could waive the privilege not only to the
investigation and report, but to any legal advice provided by the
investigator.
23. 23
Do You Want a Privileged Investigation?
Consider at the outset if you want an attorney-client privileged
investigation, i.e., an investigation you’ll never have to disclose and
that is protected from disclosure.
How will you show that you took prompt action to investigate and
remediate concerns if the investigation itself is privileged?
Consider a divide and conquer approach:
o engage an investigator to make factual findings;
o engage a separate attorney to provide legal advice about how to respond to
the investigator’s findings.
24. 24
If You Want the Privilege, Protect It.
Legal counsel directs investigation.
Make it clear at the outset that the investigation is being conducted
in anticipation of litigation and/or for the purpose of providing legal
advice.
Written report should refer to litigation risks and should state it has
been prepared at the direction of legal counsel.
Dissemination of investigation should be limited to those with a
need to know (to avoid waiver of ACP).
26. 26
Develop a Game Plan
Develop investigation plan: assess the complaint and create a plan
of action, including scope of the investigation.
o Identify parties and how and when complaint was received (and other
background); summarize allegations/issues.
o Identify and review relevant policies and documents.
o Identify potential documents to review.
o Identify potential witnesses to interview who may have relevant knowledge.
o Prepare an outline of questions for each witness.
o Determine order of witnesses (usually complainant, witnesses, respondent)
27. 27
Your Witness Interview Outlines
Topics to cover:
o Introductory comments (introduce self/role, confidentiality, no retaliation, etc.)
o Witness background
o Witness credibility
• Any biases (e.g., friendship, anything to gain, etc.)
• Basis for information (e.g., first-hand observation, second-hand report)
o The incident(s) (consider preparing a chronology) – spend the most time here
o Witness documentation
o Other witnesses
o Closing comments (return to confidentiality, no retaliation)
28. 28
Confidentiality Instructions
For supervisors, it’s easy: you may instruct them to keep the
investigation confidential during and after the investigation.
What about non-supervisors? There’s a new sheriff in town with
some strong opinions about this!
29. 29
Confidentiality Instructions to Non-Supervisors
In 2019, the NLRB ruled in Apogee Retail that employer rules
requiring employee confidentiality during open investigations are
lawful.
Would the current NLRB change this if given the chance?
Almost certainly!
30. 30
Confidentiality Instructions to Non-Supervisors
What about confidentiality post-investigation?
In Apogee Retail, the NLRB ruled that post-investigation
confidentiality rules require “individualized scrutiny in each case” to
weigh NLRA rights (e.g., the right to discuss working conditions)
against legitimate justifications (e.g., protecting an employee from
mistreatment or retaliation).
As a result, if you are going to require post-investigation
confidentiality for a non-supervisor, document the specific reasons
why in each case.
32. 32
Sample Email to Complainant
Thank you for reporting your concerns about [name of respondent or issue]. The Company takes
these issues very seriously and has asked me to investigate your concerns. I would like to
interview you and will send you a meeting invitation. [For a videoconference: Please turn on your
camera and ensure you are in a private location with no one else present.]
To protect the integrity of the investigation process and the privacy of those involved, please treat
this investigation as a confidential matter. While the investigation is pending, please do not share
the fact of the investigation or anything you learn during this process with others, including other
employees, your leaders, and anyone outside of the Company. If you need to inform your direct
leader of your need to meet with me, please tell them only that you have been asked to attend a
confidential meeting by [Legal, Human Resources, etc.]. If there are any concerns, please refer
your leader to me.
Please know that the Company has a strict no retaliation policy that protects complainants and
other participants in investigations from any direct or indirect retaliation. As such, please be
honest and forthright in answering the investigator’s questions, without fear of repercussion.
33. 33
Sample Email to Witness (not respondent)
I am writing to let you know that you have been identified as a witness in an
investigation the Company is conducting. Please note there are no allegations
against you. Instead, you have been identified as someone who may have
information important to an investigation.
Include the same points about:
Confidentiality
Retaliation protections
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Sample Email to Respondent
Consider calling the Respondent first with a follow up email.
Your email could begin: As mentioned on our call today, I am writing to let you know that I have
been asked to be a neutral investigator in a pending investigation.
Include the same points about:
Confidentiality
Retaliation protections
And add a specific anti-retaliation instruction, like this one: You may not directly or indirectly
retaliate against other team members participating in the investigation.
36. 36
Interviewing Tips
Keep body language and mood neutral
At the start of your interview, explain purpose and process:
o Discuss confidentiality
o Discuss policy against retaliation
o Requirement of truthful participation
o Stress your neutrality (“no horse in the race” or “no dog in the fight”)
Keep questions simple
Avoid leading questions and instead use neutral phrasing
o “What do you remember Sue saying,” not “Did you hear Sue use a racial
slur” or “Isn’t it true that Sue used a racial slur”
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Interviewing Tips (cont.)
Start with broad, open-ended questions. Narrow down as necessary
(“funnel” approach). Be sure to follow up and close out.
Ask the complainant how they would like to see the situation
resolved.
If witnesses (including the respondent) are unwilling to cooperate:
o Explore the reasons for the unwillingness.
o If they refuse to participate, document and proceed with the investigation
anyway.
o Let witness know you will proceed without their input.
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Interviewing Tips (cont.)
Conclude interview by:
o Asking if they have now shared everything about the issues you discussed
– and if there is anything else they would like to share.
o Asking for relevant witnesses and documents.
o Reiterating expectations regarding confidentiality.
o Reminding them about the company’s anti-retaliation policy.
o Providing your contact information and encouraging the witness to contact
you if they have any additional information.
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Completing the Investigation
Do four things:
1. Confirm you have gathered all the evidence
2. Reach findings
3. Draft investigation report
4. Draft wrap-up communications to Complainant and Respondent
41. 41
(1) Confirm You’ve Gathered All the Evidence
Return to your game plan and review it carefully –
o Review your notes and documents.
o Have you talked to everyone you meant to?
o Have you received all the documents from everyone who said they had
some?
o Don’t be afraid to follow up, i.e., to return to your investigation.
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(2) Reach Findings cont.
Separate the fact-gathering, findings, and policy conclusion phases
of your investigation.
Avoid legal conclusions and branding conduct as “harassment” or a
“hostile work environment.” Instead, just state the facts:
o Instead of “he harassed her,” write that “he said or did X to her.”
o Instead of “she was negligent,” write that she “failed to use good judgment
when…”
Your findings must be supported by the weight of the evidence you
have gathered. Use a preponderance standard: what most likely
occurred on a 51% to 49% scale.
43. 43
Preponderance of the Evidence Standard
According to SHRM, a “handy
standard” for workplace investigations
“is what courts call ‘preponderance of
the evidence.’ Using it, you don’t have
to be absolutely certain. Rather, if you
find that a fact is more likely than not
true, you can use that fact to support
your conclusion and action plan. In
other words, 51 percent true to 49
percent false is good enough, as long
as there is a supportable basis for your
finding.”
https://www.shrm.org/hr-today/news/hr-magazine/pages/0804legltrends.aspx
44. 44
(2) Reach Findings – Assessing Witness Credibility
Corroboration – Witness testimony, text message or email exchanges, video or
photo evidence, also assessing reliability of testimony with a witness’s
recollection of events
Consistency – Is there witness testimony or physical evidence that is consistent
with the complainant’s testimony? Or are there inconsistencies that make you
doubt credibility?
Inherent plausibility – Does the testimony make sense? Which version of the
events seems more plausible? Is there a plausible reason for inconsistencies?
Motive to falsify/bias – Is there motivation to lie (fear of retaliation, a witness
who wants to protect someone, etc.)?
Material omission – Did someone omit something that was important, despite
having an opportunity to provide the information?
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(3) Draft your report
Your investigation report should have at least three sections.
o Introduction: summarize the complaint, state the questions you
investigated, list who you interviewed, and summarize the documents you
reviewed.
o Summarize your investigation: try to tell a story based on the facts you
gathered. Remember, a judge or jury might read this one day!
• Alternative approach: summarize material facts from witnesses/key documents.
o State your findings: restate the questions, answer them yes/no (based on
what most likely happened), and justify why you reached those findings.
Potential additional section [if asked to do so]:
o State your policy conclusions: If substantiated, were policies violated?
46. 46
(3) Draft your report
Tips for justifying your findings
o Weave in evidentiary support in the findings section (i.e., key admissions,
documents, corroborating evidence, that is discussed in your summary
section).
o Address any key evidence that does not support your findings and explain
why it was discounted (e.g., credibility concerns, lack of corroboration,
implausibility, etc.).
o If asked to do so, describe how the company’s policies are implicated. But
do not reach legal conclusions!
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(4) Wrap-up Communications
Send wrap-up communication to the Complainant
o Thank them again for bringing their concerns forward
o Say something like: “I have completed my investigation and reported my findings
to [leadership, HR, etc.], who will be in touch with you.”
o Advise Complainant that he/she should let you [or someone else] know
immediately if a problem persists, or if there are any other concerns
o Consider post-investigation confidentiality instruction (OK for supervisors; you’ll
need a specific, documented reason for all others)
o Remind Complainant about no retaliation policy
Send wrap-up communication to the Respondent
o Add instruction that the Company prohibits retaliation against anyone who raises
concerns and those they may perceive participated in the investigation.
48. 48
Thank You
Mark D. Tolman
mtolman@parsonsbehle.com
801.536.6932
Karen Clemes
VP & Associate General Counsel for HealthEquity, Inc.
kclemes@healthequity.com