2015 FALL CONFERENCE & TRAINING SEMINAR WEARING YOUR INVESTIGATOR’S HAT: FINDING THE TRUTH WITHOUT CREATING LIABILITY Presented by: Jennifer Brown Shaw, Esq. | September 16, 2015

2015 FALL CONFERENCE & TRAINING SEMINAR WHY ARE WE HERE?

2015 FALL CONFERENCE & TRAINING SEMINAR THE DUTY TO CONDUCT AN INVESTIGATION  Once the employer is on notice of potentially inappropriate work-related conduct, it has an obligation to take “prompt” and “effective” corrective action  The investigation helps the employer determine what factually occurred, if that is in dispute

2015 FALL CONFERENCE & TRAINING SEMINAR POTENTIAL AREAS FOR INVESTIGATION  EEO issues  Financial/accounting irregularities  Leaves of absence  Safety violations  Other workplace misconduct (theft, drug use, workplace violence, improper use of equipment, etc.)  What else?

2015 FALL CONFERENCE & TRAINING SEMINAR METHODS OF NOTICE TO THE EMPLOYER  Anonymous letters  messages  Internal complaint (written or verbal)  Hotlines  Exit interview  Informal reports  Complaint letter  DFEH/EEOC complaint  Lawsuit  Other?

2015 FALL CONFERENCE & TRAINING SEMINAR EEO INVESTIGATIONS: THE “PROTECTED CHARACTERISTICS”  Age  Breastfeeding  Color  Disability/medical condition  Engaging in protected activity  Gender identity  Genetic characteristics  Marital status  National origin/ancestry  Political affiliation  Pregnancy/childbirth  Race  Religion  Sex  Sexual orientation  Veteran status

2015 FALL CONFERENCE & TRAINING SEMINAR ESTABLISHING THE PRIMA FACIE CASE  The complainant must present sufficient evidence to raise the inference the allegations are true  This creates a “rebuttable presumption”

2015 FALL CONFERENCE & TRAINING SEMINAR WHAT IF THE COMPLAINT IS NOT RELATED TO A PROTECTED CHARACTERISTIC?  It is not an EEO complaint  The EEO complaint process does not apply  The matter still must be addressed!

2015 FALL CONFERENCE & TRAINING SEMINAR WHEN IS RETALIATION A FACTOR IN AN INVESTIGATION?  Retaliation can be the focus of the investigation  Retaliation can result from an investigation  What about “whistleblower” retaliation?

2015 FALL CONFERENCE & TRAINING SEMINAR THE FOCUS OF THE INVESTIGATION  Whether the conduct alleged occurred  Whether the conduct alleged violated the employer’s policy  NOT whether the conduct alleged violated the law (e.g., the Government Code, etc.)

2015 FALL CONFERENCE & TRAINING SEMINAR THE ROLE OF THE INVESTIGATOR  To determine in good faith whether the conduct alleged occurred  To work with internal resources as needed (e.g., EEO Office, Personnel, Human Resources, legal counsel, etc.)

2015 FALL CONFERENCE & TRAINING SEMINAR WHAT ABOUT “OFF-THE-RECORD” COMPLAINTS?  There is no such thing as an “off-the-record” complaint  The law and policy require a prompt and effective investigation of any EEO-related issue to end the current problem and deter future inappropriate conduct

2015 FALL CONFERENCE & TRAINING SEMINAR EVERY INVESTIGATION MUST BE…  Prompt  Comprehensive  Procedurally fair/objective  Open/transparent  Methodical  Consistent with the employer’s policy and the law  Conducted under the highest possible standards

2015 FALL CONFERENCE & TRAINING SEMINAR BEFORE INITIATING THE INVESTIGATION  Determine the scope of the investigation  Assess possible concerns regarding the investigation (e.g., need for temporary reassignment, etc.)  Prepare an investigative workplan

2015 FALL CONFERENCE & TRAINING SEMINAR PREPARING FOR THE INTERVIEWS  Determine the general sequence of the interviews  Identify all potential relevant witnesses  Identify an appropriate location for the interviews  Develop a preliminary list of open-ended questions for each witness

2015 FALL CONFERENCE & TRAINING SEMINAR THE ART OF CONDUCTING INTERVIEWS  Begin each interview with a description of the purpose of the interview and the process (e.g., confidentiality, no retaliation, etc.)  Do not make statements as to your opinions or conclusions (e.g., telling the respondent “not to worry”)

2015 FALL CONFERENCE & TRAINING SEMINAR THE ART OF CONDUCTING INTERVIEWS (cont.)  The goal is to obtain as much detail as possible  Who, What, Where, When, and Why; “Tell me what happened”  Elicit facts, rumor, opinion, and supposition  Take notes/get statements/record the interview

2015 FALL CONFERENCE & TRAINING SEMINAR WHAT ABOUT UNCOOPERATIVE WITNESSES?  Attempt to establish rapport  Communicate the employer’s policy regarding internal investigations  Document the witness’ refusal to cooperate  Consult with the appropriate internal resource

2015 FALL CONFERENCE & TRAINING SEMINAR WHEN IS AN EMPLOYEE ENTITLED TO REPRESENTATION? Union employees have a right to have a coworker attend “investigative interviews”

2015 FALL CONFERENCE & TRAINING SEMINAR THE ROLE OF THE REPRESENTATIVE  To “clarify”  Cannot interfere in the interview  Must maintain confidentiality

2015 FALL CONFERENCE & TRAINING SEMINAR 10 STEPS TO CONDUCTING THE INVESTIGATION 1.Prepare a workplan 2.Review the applicable documents 3.Interview the complainant(s) 4.Interview the witnesses 5.Interview the respondent(s)

2015 FALL CONFERENCE & TRAINING SEMINAR 10 STEPS TO CONDUCTING THE INVESTIGATION (cont.) 6.Follow-up interviews (if necessary) 7.Conclude the investigation 8.Prepare the investigative report/file 9.Submit the investigative report 10.Inform the complainant(s) and respondent(s) of the results of the investigation

2015 FALL CONFERENCE & TRAINING SEMINAR AFTER THE INVESTIGATION IS COMPLETED  Do not discuss any information obtained during the investigation except on a “need-to-know” basis  Do conduct a “self evaluation” to prepare for the next investigation  Do ensure there is follow-up, if appropriate

2015 FALL CONFERENCE & TRAINING SEMINAR QUESTIONS?

2015 FALL CONFERENCE & TRAINING SEMINAR UPCOMING 2015 SHAW VALENZA EMPLOYMENT LAW SEMINARS Maintaining a Respectful Work Environment: EEO Compliance (AB 1825) October 13 - Sacramento December 10 – Webinar Annual Employment Law Update December 3 – Sacramento Visit Our Website at ( to See Upcoming 2016 Employment Law Seminars!

2015 FALL CONFERENCE & TRAINING SEMINAR THANK YOU th Street, Suite 2300 Sacramento, California Telephone: Facsimile: Stevenson Street, 4th Floor San Francisco, California Telephone: Facsimile: Website: