Workplace Investigations Danielle Ryman & Sarah Fischer Alaska Bar Association Employment Law Section Mtg. November 7, 2012

Topics When an affirmative duty to conduct investigation exists Framework for investigation Attorney-client privilege considerations Relevant Alaska cases

Guidance on Employer Liability for Unlawful Harassment by Supervisors No. 915 (1999) “When an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation regardless of whether it conforms to a particular format or is made in writing.”

Employer is Vicariously Liable for Harassment by Supervisor Veco v. Rosebrock, 970 P.2d 906 (Alaska 1999) Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) Faragher v. City of Boca Raton, 524 U.S. 775 (1998)

Ellerth/Faragher Affirmative Defense When an employee has not suffered a tangible employment action, but proves that she has been subject to sexual harassment by a supervisor, the employer is still liable, but affirmative defenses are available including: (1) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

Liability for Coworker Harassment If the person charged with creating the hostile work environment is the employee's coworker, and not a supervisor, employer liability may exist where the employer knew or should have known of the harassment and failed to prevent such harassment or to take prompt remedial action.

Investigation Framework: The Investigator Internal employees (HR personnel) Independent contractors (outside HR consultants) Corporate legal counsel Outside legal counsel

Investigation Framework: Conducting the Investigation Define scope of investigation Gather and review relevant documents Decide whom to interview & order Notification to witnesses Interviewing witnesses Location of interviews Written or oral report 8

The Attorney-Client Privilege Upjohn Co. v. United States, 449 U. S The Attorney-Client Privilege Upjohn Co. v. United States, 449 U.S. 383 (1981); Alaska R. Evid. 503 Confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.

The Attorney-Client Privilege Upjohn Co. v. United States, 449 U. S "[T]he privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant."

Work Product Doctrine Protects from discovery the documents and tangible things prepared in anticipation of litigation by or for another party or that party’s representative unless the party seeking discovery can show a substantial need for the materials and that it is unable, without undue hardship, to obtain substantially equivalent materials elsewhere.

Limitations/Waiver on Attorney-Client Privilege & Work Product Attorney materials may be necessary to rebut employer's defense that it promptly investigated and took remedial action. Outside legal counsel may become a witness. Disclosure to 3rd party where the disclosure is inconsistent waives the privilege.

Limitations/Waiver on Attorney-Client Privilege Employer may waive its right to invoke privilege by asserting adequacy of its investigation. Wallace has, through an affirmative act, placed the nature of its investigation in dispute. Wallace cannot at once defend on the basis of its investigation and employ the attorney-client privilege to prevent the plaintiff from exploring the adequacy of that investigation. Rather, fairness requires that Peterson be allowed to make such inquiry in order to rebut Wallace's defense. Indeed, the only way that Peterson, or for that matter, the finder of fact, may evaluate the sufficiency of Wallace's defense is through full disclosure of the content of the investigation. Peterson v. Wallace Computer Services, 984 F. Supp. 821 (D. Ver. 1997). Even if employer waived its privileges by asserting its prompt remedial action as a defense to liability, the plaintiff already had a significant amount of information pertaining to the investigation. Therefore, the plaintiff could construct a fairly complete picture of the actions the employer took to investigate the claim. Ryall v. Appelton Elec. Co., 153 F.R.D. 660 (D. Colo. 1994). The attorney-client privilege extends only to communications, not to underlying facts. Peterson v. SOA, 280 P.3d 559, 567 n.59 (Alaska 2012).

Alaska Case Law "As a matter of law, a jury could not find the City's termination without an investigation violated the implied covenant." Ramsey v. City of Sand Point, 936 P.2d 126 (Alaska 1997). Employer must conduct a "fair and reasonable" investigation. Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 761 (Alaska 2008). Advise employee of allegations against him and give him a fair opportunity to present his side of the story

Lentine v. SOA, 282 P.3d 369 (Alaska 2012) "An investigation's fairness or reasonableness is a fact-dependent question and may depend on the strength of the evidence of the underlying infraction." 283 P.3d at 378. Focus of the investigation was "never realistically a point of confusion" She admitted to a terminable offense

An employer may reject, in good faith, an employee's version of events An employer may reject, in good faith, an employee's version of events. A factual finding in an investigation later found to be inaccurate does not constitute bad faith where the employer had substantial reason to believe that the misconduct occurred. "Mere denial of wrongdoing is insufficient in and of itself to avoid summary judgment . . ." Crowley v. SOA, 253 P.3d 1226 (Alaska 2011); Smith v. SOA, 253 P.3d 1233 (Alaska 2011)

Willard v. Khotol Services, 171 P.3d 108 (Alaska 2007) In contrast, the record here indicates that Bellamy's "investigation" of Willard's requests consisted of second-hand information . . . 171 P.3d at 116.