To view the accompanying webinar, go to: https://www.financialpoise.com/financialpoisewebinars/on_demand_webinars/i-know-what-you-did-last-summer-workplace-investigations/ Now, more than ever, employers must be prepared to promptly and effectively respond to complaints of workplace harassment and/or discrimination. Often, that requires knowing when and how to conduct an internal investigation. Given the significance of the issues often at stake and the potential for a negative outcome (attorneys’ fees, high dollar settlement, negative PR), learning on the fly is not a viable option when undertaking an investigation. This program covers a host of questions, including what sort of issues should be investigated, who should conduct the investigation, what steps should you take and in what order, who should be interviewed, what sort of documents should be created and how do you close out the investigation? It also explores the investigation process and provides guidance from a seasoned investigator as to how to handle the many issues that you will often confront during the course of an investigation.

2. Practical and entertaining education for
attorneys, accountants, business owners and
executives, and investors.
2

3. The material in this webinar is for informational purposes only. It should not be considered legal,
financial or other professional advice. You should consult with an attorney or other appropriate
professional to determine what may be best for your individual needs. While Financial Poise™
takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™
makes no guaranty in this regard.
While Financial Poise is happy to make this PowerPoint freely available to all, the reader is
cautioned that it was created for use as part of a webinar that featured an extensive verbal
discussion of the topics addressed in the PowerPoint. It was not designed to be read by
itself. Financial Poise webinars can be purchased at www.financialpoise.com. You may also
receive offers for free webinars by subscribing to Financial Poise's DACyak, a free weekly
newsletter.
DISCLAIMER
3

4. MEET THE FACULTY
MODERATOR:
Aaron Gelb Conn Maciel Carey LLP
PANELISTS:
Rachel Ablin Ablin Law, P.C.
Charles A. Krugel Law Offices of Charles Krugel
Jennifer Marszalek Havas Chicago Village/Havas
4

5. ABOUT THIS WEBINAR
Now, more than ever, employers must be prepared to promptly and effectively respond to complaints of workplace
harassment and/or discrimination. Often, that requires knowing when and how to conduct an internal investigation.
Given the significance of the issues often at stake and the potential for a negative outcome (attorneys’ fees, high dollar
settlement, negative PR), learning on the fly is not a viable option when undertaking an investigation. This program
covers a host of questions, including what sort of issues should be investigated, who should conduct the investigation,
what steps should you take and in what order, who should be interviewed, what sort of documents should be created
and how do you close out the investigation? It also explores the investigation process and provides guidance from a
seasoned investigator as to how to handle the many issues that you will often confront during the course of an
investigation.
This webinar is delivered in Plain English, understandable to you even if you do not have a background in the subject.
It brings you into an engaging, even sometimes humorous, conversation designed to entertain as it teaches. And, it is
specifically designed to be viewed as a stand-alone webinar, meaning that you do not have to view the other webinars in
the series to get a lot out of it.
5

6. ABOUT THIS SERIES
If you have employees or advise companies with employees, this webinar series is for you! No employer—
whether large, medium or small—is immune from the reach of federal, state and/or local employment laws
and regulations. Now, more than ever, employers should consider taking a proactive approach to auditing
their employment practices and policies so that they can better respond when issues arise. This webinar
series approaches the employer-employee relationship from beginning to end, with programs covering the
most important steps along the way, including hiring and onboarding, policy and procedure development
and training, wage and hour compliance, accommodating disabled employees, conducting investigations and
considerations associated with ending the relationship.
As with every Financial Poise Webinar, each episode is delivered in Plain English understandable to
investors, business owners, and executives without much background in these areas, yet is also valuable to
attorneys, accountants, and other seasoned professionals. And, as with every Financial Poise Webinar, each
episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches.
Each episode in the series is designed to be viewed independently of the other episodes, so that participants
will enhance their knowledge of this area whether they attend one, some, or all episodes.
6

7. Dates shown are premiere dates; all episodes will be available on demand after
their premiere date.
EPISODES IN THIS SERIES
EPISODE #1 Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants 1/23/18
EPISODE #2 An Ounce of Prevention: Policies, Procedures and Proactivity 2/20/18
EPISODE #3 Show Them the Money: Wage & Hour Compliance 3/20/18
EPISODE #4 Time for a Break: Managing Leaves of Absence and Accommodating Disabilities 4/17/18
EPISODE #5 I Know What You Did Last Summer: Workplace Investigations 5/15/18
EPISODE #6 It’s So Hard To Say Goodbye: Minimizing Risk When Terminating Employees 6/19/18
7

8. Episode #5: I Know What You Did Last Summer:
Workplace Investigations

9. AGENDA
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™
9

10. WHAT IS AN INTERNAL INVESTIGATION?
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 10
• Compliance tool to determine whether policies or procedures have been
violated by an employee
• Assures adherence to company goals, mission and values
• Assures quality in products or services
• Ensures a sound and factual basis for informed decision-making or
appropriate discipline
• Reduces exposure to claims / risk management

11. WHEN IS AN INTERNAL INVESTIGATION
TRIGGERED?
• Complaint or report of policy violation
✓ Even if victim insists on no action
✓ Written or verbal complaints
• Management observation
• Injury or illness
• Threats
• EEOC, NRLB, or other lawsuit
✓ Even if employee did not complain internally
• DOL audit
• Theft of company property or information
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 11

12. WHEN IS AN INTERNAL INVESTIGATION
REQUIRED?
• If discrimination laws are implicated (Title VII, ADA, ADEA)
– Farragher/Ellerth Defense
• OSHA
• Drug Free Workplace Act
• SOX
• Securities Act
• DOT regulations
• HIPAA
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 12

13. SCOPE OF INTERNAL INVESTIGATION
• Informal” investigation?
- Minor policy violation
- Resolve the issue quickly without many interviews or witnesses
• “Formal” Investigation?
- If there is legal exposure
- Serious policy violation
- Need to document and result
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 13

14. FORMAL INTERNAL INVESTIGATIONS
• How serious is the policy violation or conduct?
• How many employees are involved?
• Is there an immediate threat to loss of company information or danger to
employee(s)?
• What area of law is implicated?
• Does the investigation need to be completed immediately?
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 14

15. FORMAL INVESTIGATIONS SHOULD
TAKE PLACE IMMEDIATELY
• Lock in witnesses’ stories and recollections
• Documents / E-mails / Texts can be lost or destroyed
• Prevent spoliation and potential adverse inference at trial
• Witnesses may leave the company
• Ensures compliance with legal duty to investigate promptly and thoroughly
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 15

16. ELEMENTS OF A GOOD INTERNAL
INVESTIGATION
• Prompt – but not rushed
• Thorough – but not too long
• Confidential – as much as possible
• Impartial and objective
• Conducted by disinterested and respected personnel or third parties
• Effective at facilitating an appropriate outcome for all sides
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 16

17. CONDUCTING AN EFFECTIVE
INVESTIGATION
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 17

18. OUTLINE OF INTERNAL INVESTIGATION
• Identify goals and outline plan
• Identify investigator or team of investigators
• Gather documents
- Personnel file
- Prior complaints
- E-mails, documents, correspondence, texts
- Employee handbook or policies implicated
- CBA – if unionized
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 18

19. OUTLINE OF INTERNAL INVESTIGATION
(con’t)
• Maintain investigation file
- Interview notes of all witnesses
- Signed statements
- Final report with conclusions and recommendations
Consider external resources
- Outside counsel
- Private investigators
- IT
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 19

20. WHO SHOULD INVESTIGATE?
• Human Resources
- Good for minor violations of policy
• Outside consultant/investigator
- Particularly if there could be a conflict of interest or you want appearance of
impartiality
• In-house or outside counsel
- If a threat of litigation
• Forensic examiners
- Electronic data or misappropriate of proprietary information
FLSA claims
• Law enforcement
- If violence or theft is suspected
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 20

21. WHO TO INTERVIEW?
• Decide who to interview and when
- Complainant
- Victim (if not the complainant)
- Accused
- Witnesses
• Employees in the same department
• Employees other witnesses identify as knowledgeable
• Authors of documents
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 21

22. WHO TO INTERVIEW? (con’t)
- Management
- HR
- Experts within the company
• Typically interview the complainant, then the accused, then witnesses and
conclude with the complainant again
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 22

23. INTERVIEW TECHNIQUES
• Prepare an opening statement
- Thank interviewee
- Explain what you are investigating
- Explain why the interviewee was selected
- Explain that the company takes this matter seriously and has a
commitment to investigate
- Cooperation is expected
- Company has firm no-retaliation policy
- Information will be kept “as confidential as possible”
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 23

24. INTERVIEW TECHNIQUES (con’t)
• Use traditional, deposition style questions
- Ask open-ended questions
- Don’t dominate the conversation
- Allow time for follow up and responses; don’t rush the witness
- Active listening and follow-up
- Cover all bases (“Is there anything else you can remember?)
- Ask if there is anyone else you should speak to.
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 24

25. INTERVIEW DOCUMENTATION
• Written statement from witness
• Recorded interview/statement from witness
• Interview notes
- Personal observations vs. reported facts
• Summary memorandum
• Relevant documents relied upon and used for each interview
• Report
- Include recommendations for action?
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 25

26. OTHER SOURCES OF INFORMATION
• Emails
• Text messages
• Instant messages
• Voicemails / telephone records
• Home computers
• Personal electronic devices
• Video / audio surveillance
• Social networks
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 26

27. FINAL REPORT
• Consider format of final report
- Formal? Summary? Memo to file?
• Who will read it?
- Board of Directors
- Outside auditors
- Legal counsel
- Government agencies?
- Plaintiff’s counsel?
- Press
- Law Enforcement
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 27

28. FUNDAMENTALS OF FINAL REPORT
• Report should contain:
- Summary of the issues
- Relevant facts
- Methodology used to conduct the investigation
- Scope of the investigation
- Applicable law
- Findings
- Recommendations
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 28

29. NEXT STEPS
• Appropriate remedial action taken
- To the accused
• Discipline for the misconduct
• Consistent with past practice
• Sufficient to avoid future problems
- To the victim
• Restore lost job benefits and compensation
• Report results of investigation
• Confirm in writing
- To others to avoid future conduct
- Avoid Retaliation!
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 29

30. SPECIAL CONSIDERATIONS
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 30

31. SPECIAL CONSIDERATIONS
• Attorney-Client Privilege
- Upjohn v. United States
- But, must give a corporate “Upjohn” warnings
• Counsel represents the company, not the individual
• Employee being interviewed to assist counsel in providing legal advice
• Statements made by employee will be shared with company
• Communications are privileged
• Company alone owns the privilege
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 31

32. RIGHTS OF THE INTERVIEWEE?
• Right to counsel?
- If accused is facing possible criminal charges
- If employee reasonably believes answer would incriminate them in a
criminal case
• Right to a “friend?”
• Right to union representative?
- Consider whether CBA applies to investigations of complaints
• Can an employee refuse to participate?
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 32

33. CONFIDENTIALITY ISSUES
• Can you keep the investigation confidential?
- NLRB’s position
• Employer cannot maintain a blanket policy/rule regarding the
confidentiality of employee investigations.
• Employer must demonstrate a need for confidentiality on a case by
case basis – is there a “legitimate and substantial business justification”
that outweighs Section 7 rights?
- EEOC’s position
• Similar to NLRB
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 33

34. PRIVACY ISSUES
• Does the employee have a reasonable expectation of privacy in private files
on office computer?
- Courts are split – some fine that private emails sent from work computer
is protected and some find they are not
• Social networking privacy
- State laws restrict employers from asking for passwords to social media
accounts or passwords to private email accounts
- Don’t ask a subject of an internal investigation to grant access to their
online social networking accounts as part of the investigation.
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 34

35. STRATEGIES TO AVOID CLAIMS AFTER
AN INVESTIGATION
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 35

36. STRATEGIES
• Regularly train managers and supervisors on HR policies
• Develop and disseminate policies to lower privacy expectations
• Investigate only on reliable, documented factual allegations that justify
investigation
• Do not investigate more than necessary
• Maintain confidentiality to the extent possible
• Use the appropriate investigator
• Make decisions and take action
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 36

37. ABOUT THE FACULTY
AARON GELB
agelb@connmaciel.com
Aaron R. Gelb is a partner in the Chicago office of Conn Maciel Carey, a boutique law firm focused on
Labor & Employment, Workplace Safety, and Litigation. Mr. Gelb specializes in labor and
employment, and OSHA litigation. He has extensive experience litigating equal employment
opportunity matters in federal and state courts having tried a number of cases to verdict and defending
employers before the EEOC as well as fair employment agencies across the country; in the past 5 years
alone, Aaron has successfully handled more than 250 discrimination charges. Aaron also has a
particular emphasis on advising and representing clients in relation to inspections, investigations, and
enforcement actions involving federal OSHA and state OSH programs, and managing a full range of
litigation against OSHA. Mr. Gelb received his bachelor’s degree from the University of Chicago in
1992 and his JD from the University of Texas in 1995.
37© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™

38. ABOUT THE FACULTY
RACHEL ABLIN
rachel@ablinlaw.com
Rachel Ablin is the founder of Ablin Law, PC a firm focused on conducting independent investigations of suspected
workplace misconduct. Ms. Ablin has extensive employment law experience. Prior to starting her firm, Ms. Ablin
worked for over 19 years as in-house employment counsel for Walgreens. In her role at Walgreens, she successfully
advised business clients on a broad spectrum of employment and labor law matters. This included advising clients on
complex and high risk employee relations issues, conducting and directing internal investigations, representing the
company before administrative agencies nationwide and successfully managing Title VII, ADA, FMLA, ADEA, PDA,
retaliation and public accommodation single plaintiff and class action litigation.
Prior to joining Walgreens, she also conducted hundreds of investigations as a Senior Investigator for the Equal
Employment Opportunity Commission in Chicago and Baltimore. She was hired through the Outstanding Scholars
program and she worked as an EEOC investigator while attending law school. After successfully conducting numerous
neutral EEOC investigations at thousands of private employers across a diverse industry base, she received a special
assignment investigating significant sexual harassment cases. Ms. Ablin is currently a member of the Association of
Workplace Investigators (AWI) and attended AWI’s national training institute. She is admitted to practice law in Illinois
and Maryland (currently inactive status in Maryland).
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 38

39. ABOUT THE FACULTY
CHARLES KRUGEL
cak1@charlesakrugel.com
As a management side labor & employment attorney & human resources (HR) counselor, Charles
Krugel has 20-plus years of experience in the field & has had his own practice for more than 15 years;
www.charlesakrugel.com.
Charles’ clients are small to medium sized companies & not-for-profits in a variety of industries. His
practice is equal parts prevention, negotiation & litigation. Besides providing traditional labor &
employment law services, he represents companies desiring to institute preventive & proactive HR
functions. These functions include policies & procedures that which help to efficiently and discreetly
resolve issues in-house & prevent lawsuits & complaints. They also help to reduce costs & act as
catalysts for increasing productivity & profits.
For perspectives of what Charles’ clients think of him, please see his “Client Testimonials” web page.
39© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™

40. ABOUT THE FACULTY
JENNIFER MARSZALEK
Jen.mars@havas.com
Jennifer leads the Talent Team at Havas’ Chicago Village consisting of Talent
Acquisition, Talent Management, HRBPs and employee culture. A strategic
human resource business partner with deep experience in high growth tech,
advertising and retail environments, Jennifer works with leaders to help shape
organizational culture and scale their workforce to drive business growth.
Prior to joining Havas in 2016, Jennifer lead the People Team (encompassing
all of HR) at Grubhub and was the head of human resources at SurePayroll, a
subsidiary of Paychex.
© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™ 40

41. The material in this presentation is for general educational purposes only. It has been prepared
primarily for attorneys and accountants for use in the pursuit of their continuing legal education and
continuing professional education.
While Financial Poise is happy to make this PowerPoint freely available to all, the reader is
cautioned that it was created for use as part of a webinar that featured an extensive verbal discussion
of the topics addressed in the PowerPoint. It was not designed to be read by itself. Financial Poise
webinars can be purchased at www.financialpoise.com You may also receive offers for free webinars
by subscribing to Financial Poise's DACyak, a free weekly newsletter.
IMPORTANT NOTES
41© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™

42. If you have any questions about this webinar that you did
not get to ask during the live premiere, or if you are watching this
webinar on demand, please don’t hesitate to email us at:
info@financialpoise.com
Please include the name of the webinar in your email,
and we will provide a response to your question.
QUESTIONS OR COMMENTS?
42© 2018 by DailyDAC, LLC d/b/a Financial Poise Webinars™

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44. About Financial Poise™
www.financialpoise.com
DailyDAC LLC, d/b/a Financial Poise™ provides continuing education to
attorneys, accountants, business owners and executives, and investors. Its
websites, webinars, and books provide Plain English, entertaining,
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audiences.
44