The document outlines guidelines and best practices for managing employee performance issues, conducting investigations, and handling workplace discrimination and harassment claims. It emphasizes the importance of compliance with legal standards, maintaining ethical workplace environments, and implementing fair investigation strategies. Recommendations include timely responses to complaints, thorough documentation, and ensuring all employees are treated consistently throughout the process.

1. Paul Falcone
PaulFalconeHR@gmail.com
www.PaulFalconeHR.com

2. SHRM “Great 8” Books by Paul . . .
 101 Sample Write-Ups for Documenting Employee
Performance Problems
 101 Tough Conversations to Have with Employees
 96 Great Interview Questions to Ask Before You Hire
 2600 Phrases for Effective Performance Reviews
New in 2016: 75 Ways for Managers to Hire, Develop, and
Keep Great Employees (AMACOM Books)
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3. Workshop Calendar
I. Rules of Engagement
II. Challenges, Roadblocks, and Land Mines
III. Scenarios for Discussion & Analysis / Role Play
IV. Best Practices: Ideas and Suggestions
V. Investigation Strategies & Employer Responses
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4. I. Rules of Engagement
Legal vs. Ethical
 Legal standard = compliance / avoidance of
wrongdoing that could trigger employment-related
liability
 Ethical standard = building a moral corporate culture
based on integrity and transparency
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5. Rules of Engagement (cont.)
Legal Standards and
Guidelines
 Can you demonstrate that your company had a legitimate,
non-discriminatory, non-retaliatory reasons for the action
that it took?
 Can you demonstrate business necessity (AKA a
compelling business reason) and job relatedness?
 Standard: Did the employer have a good faith belief? . . .
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6. Rules of Engagement (cont.)
 Disparate Treatment: intentional discrimination
 Disparate (Adverse) Impact: a policy neutral on its
face and even-handedly applied that nevertheless has a
disproportionate adverse impact on a protected group
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7. Rules of Engagement (cont.)
Protected Characteristics
 Federal Law (Title VII) = 5 protections
Race, color, religion, sex, and national origin
 California State Law = 17 protections
Five from Title VII above plus ancestry, physical disability,
mental disability, medical condition, marital status,
pregnancy, age, sexual orientation, gender identity, gender
expression, genetic information, and military / veteran
status
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8. Rules of Engagement (cont.)
The “reasonableness” standard holds that if you (i.e., the
company) either knew or should have known about a
worker being harassed, retaliated against, or the like,
you have an affirmative obligation to intercede.
The icon of the monkey covering its eyes, ears, and
mouth—that is, not wanting to know what’s going
around it—won’t hold up in court and will do very
little to sustain positive employee relations at work.
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9. Rules of Engagement (cont.)
In court, your organization will be treated as a corporate
citizen, and questions will be raised as to whether that
“citizen” acted responsibly and appropriately by
interceding on behalf of its most vulnerable and
disadvantaged members.
-- For more information, see the Workplace Investigation
Toolkit by Paul Falcone in his Web Store at
www.PaulFalconeHR.com
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10. II. Challenges, Roadblocks, and
Land Mines
 What challenges are you finding in the field?
 Can you identify one roadblock, that if corrected,
could make things a whole lot easier?
 What solutions would you propose to strengthen the
muscle of front-line leadership and address pockets of
employee performance problems?
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11. Challenges (cont.)
 What are some common ways that employees may
engage in unethical behavior?
 How do you effectively deal with people who
constantly “fly below the radar” in terms of not
(formally) violating a policy but stretching the limits?
 What types of performance or conduct infractions can
typically justify a “summary dismissal”?
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12. III. Scenarios for Discussion &
Analysis / Role Play
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13. IV. Best Practices: Ideas and
Suggestions
 Rule 1: It’s all about the record
 Rule 2: Practice trumps policy
 Rule 3: Always get the accused worker’s side of the
story before making a final decision
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14. Best Practices (cont.)
 Rule 4: When the issue drives the outcome (i.e., “third
rail” issues that require immediate termination,
regardless of an employee’s work history)
 Rule 5: The importance of timeliness
 Rule 6: Removing employees from the workplace—a
necessary consideration in the investigation process
(i.e., paid vs. unpaid investigatory leaves)
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15. Best Practices (cont.)
 Rule 7: Sameness vs. Consistency
 Rule 8: Performance vs. Conduct
 Rule 9: Beware the dreaded preemptive strike of
“pretaliation”
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16. Best Practices (cont.)
 Rule 10: Vet the written record before recommending
termination—Review the written record in its totality
before considering the “final incident” that’s driving your
decision to terminate (including recent corrective action
and historical performance reviews)
 The Performance-Conduct Circle
All employees are responsible for both their performance as
well as their conduct. In other words, regardless of the
performance, they’re responsible for creating a friendly and
inclusive work environment.
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17. V. Investigation Strategies &
Employer Responses
Standard = Fair, Prompt, and
Thorough Investigations
Fair: performed in good faith
objective
defined by what is reasonable under the circumstances
no decisions made until all sides have been heard
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18. Investigation Strategies (cont.)
Prompt: no legal definition exists
 General Rule: Always meet with complainant ASAP –
same day or within 1-2 days
 Note: Employer is obligated to complete an
investigation and take appropriate corrective action,
even if it has no evidence that harassment is
continuing or complainant has asked you not to
pursue (or alleged harasser is no longer with the
company)
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19. Investigation Strategies (cont.)
Thorough
 Need to interview the accused
 Need to interview witnesses, if any
 Be careful not to omit an important witness or neglect
to pursue an important contradiction in a witness’s
story
 Ask the complainant at the outset (1) what she would
like to see happen and (2) whom she thinks should be
interviewed.
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20. Investigation Strategies (cont.)
Caveats
 Be cautious about interviewing a witness by yourself
 Unprofessional documents are easier to discredit
 Don’t make any legal conclusions in your notes
 Don’t refer to conduct as “sexual harassment” or
“hostile work environment” (i.e., legal conclusions)
 Describe behavior, do not characterize it
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21. Investigation Strategies (cont.)
 If you fail to maintain confidentiality of information
regarding an employee, that individual may later try to
assert a claim of defamation or invasion of privacy
 Without dual consent, tape recording is illegal in some
states, including California
 When participants are equally believable, issue “To
ensure there is no confusion” letters to both parties,
spelling out company expectations in the future
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22. Investigation Strategies (cont.)
 Investigator should tell the complainant (a) that the
company took the complaint seriously, (b) thoroughly
investigated the matter, and (c) took appropriate
remedial action
 Investigator should not tell the complainant the
specific discipline to be imposed against the
perpetrator—could violate the perpetrator’s right to
privacy
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23. Investigation Strategies (cont.)
EEOC Credibility Determinations (He Said – She Said)
1. Inherent plausibility
2. Demeanor
3. Motive to falsify
4. Corroboration
5. Past record
Note: “Is there any reason the other person would lie?” is an
important question in a he said—she said investigation
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24. Investigation Strategies (cont.)
Open Questions for Discussion
 May an employee request an attorney to attend an
investigatory meeting?
 May an employee request a family member, friend, or
coworker to attend?
 May an employee request that a union steward be present?
 Should you ask witnesses to put their statements in
writing?
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25. Investigation Strategies (cont.)
 Should the alleged wrongdoer be interviewed first,
second, last, or in some other order?
 Should you give a heads-up to the alleged wrongdoer?
 If you type up your notes, should your
contemporaneous handwritten notes be destroyed
afterward (unless under a Legal Hold)?
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26. Investigation Strategies (cont.)
 If the accused refuses to participate in an
investigation, what are the consequences?
Special Note: Employees have a duty to cooperate with
an investigation and may be disciplined for failing to
do so.
 Employee requests to leave the interview should be
granted.
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27. Investigation Strategies (cont.)
Case Evaluation
When making credibility determinations, consider:
 Corroborating evidence
 Consistency in testimony
 Possible bias
 Demeanor
 Whether a particular account is plausible based on direct
observation or hearsay
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28. Investigation Strategies (cont.)
 Even if policy was not violated, consider whether there
was inappropriate conduct that should be addressed
(e.g., screamers, public shaming / humiliation, etc.)
 Note: The “equal opportunity harasser” defense
doesn’t typically work as a legal defense strategy
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29. Investigation Strategies (cont.)
Prompt Remedial Action
In determining what discipline may be appropriate,
consider:
1. The severity of the offense
2. Prior discipline and work record
3. Whether the accused was cooperative during the
investigation
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30. Investigation Strategies (cont.)
 Any discipline that does not result in immediate
termination should provide clear guidelines for future
behavior and establish the severity of future discipline
in the event of further misconduct
 E.g., “If you ever again engage in conduct that . . ., you
[may/will] be immediately terminated for cause.”
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31. Investigation Strategies (cont.)
 Closing the loop with an employee whose boss is
disciplined
“The process is complete. Thank you for coming forward
and helping us enforce the policy. Again, no
retaliation may occur, and if you sense the possibility
of retaliation in any form, HR should be notified
ASAP.”
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32. Investigation Strategies (cont.)
 “We have completed an internal investigation regarding the allegations of unfair
treatment that you brought forward and are addressing these issues with
departmental leadership and other members of your team. During the course of
our investigation, however, we obtained information from a number of sources
that calls into question your conduct. It has been reported by a number of your
peers as well as your supervisor that you have initiated, encouraged, and
participated in conversations of a sexually explicit nature. In addition, a
number of your coworkers reported that you appear to initiative back rubs and
neck massages that make people uncomfortable. Your behaviors have been
described as flirtatious, coy, and even enticing at times, and such conduct
clearly violates our organization’s standards of performance and conduct.
 “We are open to investigating and correcting any and all legitimate claims of
harassment that you feel may exist in the workplace. However, we cannot
overlook the evidence that you appear to be responsible for unacceptable
conduct in a number of instances as well . . .”
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33. Investigation Strategies (cont.)
Whether you capture this information in an investigatory
conclusion letter or issue separate corrective action based on
your findings, your actions will go a long way in shielding the
company from the liability commonly seen in workers who
demonstrate both a “victim syndrome” and “entitlement
mentality.”
Likewise, your follow-up documentation issued to the employee
should mitigate claims from workers who attempt to launch a
“preemptive strike” against their employer by formally
complaining about a boss’s conduct before the supervisor has a
chance to complain about the individual’s job performance.
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34. Investigation Strategies (cont.)
 “Social ostracism” does not constitute retaliation
 Proper use of the Attorney-Client Privilege
“Confidential: Attorney-Client Privileged
Communication” in Subject line
 Use first-person singular when taking someone’s
statement: Sylvia stated, “I . . .”
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35. Investigation Strategies (cont.)
Concluding the Investigation
 Some attorneys recommend having the complainant
review and approve an interview sign-off to eliminate
any potential dispute of the facts
 An employee is not entitled to know employment
actions directed toward another employee
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36. Investigation Strategies (cont.)
 Retain all notes, witness statements, and documents
gathered in connection with the investigation in a
designated and secure location and in an
“Investigation File,” separate and apart from the
personnel file
 The retention period for investigation files is the
length of the complainant’s employment plus six years
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37. Investigation Strategies (cont.)
 Note that your entire investigative file may be subject
to discovery should a lawsuit be filed in connection
with the issues raised in the complaint
 As an investigator, you can be called on to testify about
any matter related to the investigation, including the
substantive facts found as well as the process of how
the investigation was conducted
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38. Investigation Strategies (cont.)
 Reasonable standard = “preponderance of the
evidence” (as opposed to the criminal standard of
“beyond a reasonable doubt”)
 Bottom Line: When conducting investigations, no
court or arbitrator is expecting you, the employer, to
have a crystal ball or to be “absolutely” correct.
Instead, the legal standard that you and your company
will be held to will be to (1) conduct a thorough
investigation in a timely manner and (2) reach a
reasonable conclusion about your findings.
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39. Investigation Strategies (cont.)
Tips
1. Turn an Excel spreadsheet into a masterful investigator’s reporting log.
Rather than taking phone messages on paper and discarding them
afterwards, get into the habit of tracking voicemail messages on a
spreadsheet that’s set up as follows:
 Date
 Time
 Caller Name
 Company
 Phone #
 Cell #
 Message Details
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40. Investigation Strategies (cont.)
2. Remind supervisors that they are not to conduct their
own “mini-investigation” into matters where they are
personally accused under any circumstances (i.e.,
trying to find out who said what to whom as part of
the original complaint), as this in itself can be seen
as a form of retaliation and could be considered a
separate and very serious violation of company policy
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41. Investigation Strategies (cont.)
3. Always launch your investigation by partnering with a
client who is one tier above the alleged wrongful action
For example, if a VP and director (who reports directly to
the VP) are lodging complaints against one another,
you’ve got to work with SVP of the department (i.e.,
the VP’s supervisor) to coordinate all your
investigational efforts and keep that leader informed
every step of the way (including proposed resolutions
to the problem).
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42. Investigation Strategies (cont.)
4. You should also be careful not to suggest that an
employee who has filed a complaint is untouchable.
Complainants should be protected from unlawful
retaliation; they should not be shielded from
legitimate adverse employment actions if they fail to
meet an employer’s legitimate expectations.
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43. Wrap and Q&A
Presenter: Paul Falcone
PaulFalconeHR@gmail.com
www.PaulFalconeHR.com
https://www.linkedin.com/in/paulfalcone1
https://www.facebook.com/PaulFalconeHR/
@PaulFalconeHR
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