Getting the whole story in internal investigations TEACHING PIGS TO SING: Getting the whole story in internal investigations Thomas M. Cunningham Direct Number: (515) 283-8176 | Facsimile: (515) 283-3108 | E-Mail: tmc@nyemaster.com 700 Walnut, Suite 1600 | Des Moines, IA 50309-3899 | (515) 283-3100   Attorneys at Law | Offices in Des Moines, Ames and Cedar Rapids www.nyemaster.com ©2014 Nyemaster Goode, P.C.

Pre-Investigation Issues Have an effective complaint process Train supervisors how to respond to initial complaint and recognize it for what it is Know when to conduct an investigation Know what kind of investigation to conduct www.nyemaster.com ©2014 Nyemaster Goode, P.C.

Immediate Action Gather the relevant documents Get IT involved - - email and social media have changed the nature of investigations Interim steps pending the investigation Potential criminal misconduct www.nyemaster.com ©2014 Nyemaster Goode, P.C.

Selecting the Investigator Prompt action is critical / have the investigator designated before the crisis Credibility is key: do not choose one of the players or someone closely “aligned” with a player as the investigator Be objective --- Jack Webb www.nyemaster.com ©2014 Nyemaster Goode, P.C.

Selecting the Investigator Supervisors are rarely good investigators Outside investigators Attorney as investigator Plan the investigation www.nyemaster.com ©2014 Nyemaster Goode, P.C.

Investigator Characteristics Thorough Inquisitive Able to distinguish between and among personal, first-hand knowledge and hearsay Tight-lipped; not a rumor-mongerer www.nyemaster.com ©2014 Nyemaster Goode, P.C.

Goals Learn What Happened! Let the witnesses talk – open ended questions Don’t try to teach pigs to sing Investigator will be required to make credibility judgments www.nyemaster.com

Step One: Interview the Complainant Provide another copy of the employer’s anti-harassment/ discrimination policy DO NOT PROMISE CONFIDENTIALITY Ask open-ended questions, rather than ones that can be answered yes/no Go over the version of the events several times during interview Get a signed witness statement, if possible www.nyemaster.com ©2014 Nyemaster Goode, P.C.

Step Two: Interview Witnesses Interview the alleged perpetrator(s) Interview identified witnesses and persons with knowledge Follow the steps and use the techniques employed while interviewing the complaining party Conduct rebuttal and corroboration interviews www.nyemaster.com ©2014 Nyemaster Goode, P.C.

Step Three: Investigation Post-Mortem Investigator should review facts with HR and/or senior management and employment counsel Check for consistency in techniques, conclusions, and decisions Have all relevant facts been obtained and documented? Have all persons affected been given an adequate opportunity to give their side of the story? www.nyemaster.com ©2014 Nyemaster Goode, P.C.

Step Four: Conclusion, Discipline The investigator has additional duties if he or she concludes that harassment has occurred. These include remedies and discipline, in conjunction with senior management and counsel. At each stage of the investigation, the investigator is always seeking the opportunity to learn more. www.nyemaster.com ©2014 Nyemaster Goode, P.C.

Concluding the Investigation Consolidate the paperwork Document the nature and date of the report and the parties involved Memorialize all steps taken, including that the alleged harasser was confronted with the allegations and given an opportunity to respond fully Results of the investigation, including remedies provided and discipline taken www.nyemaster.com ©2014 Nyemaster Goode, P.C.

Questions? www.nyemaster.com ©2014 Nyemaster Goode, P.C.