Conducting a workplace investigation A Presentation for PASCO October 24, 2013

The Duty to Conduct an Investigation Once an employer receives a complaint of harassment (or any unlawful employment practice), the employer has a duty to investigate and, if necessary, correct the behavior.

Duty to Whom? Complainant – investigation is a “reasonable step” to prevent discrimination, harassment, etc. Affirmative Defense if employee fails to take advantage Accused – employer must have “good cause” to terminate an individual for alleged misconduct Courts recognize negligent investigation as separate cause of action

When to Investigate

Do I Need to Investigate This Claim? Complaint Amounts to Unlawful Conduct Additional Facts, Documents, or Opinions/Experts Needed Perform Investigation! Employee Relations Issue. Not Unlawful Conduct Do Not Need Additional Information No Investigation Needed

Types of Claims Commonly Requiring Investigation Harassment Discrimination Retaliation Workplace Violence Employee Theft

Requirements of Investigation

Most Important Characteristics Conduct an investigation to arrive at good faith conclusion based on reasonable grounds supported by substantial evidence. Cotran v. Rollins Huding Hall Int’l Inc. ; Silva v. Lucky Stores, Inc. Begin promptly after receiving complaint Have a policy regarding investigations Provide both sides opportunity to present position and contradict relevant statements Allows for progressive discipline Designate well-trained individual to investigate Base ultimate findings on objective evidence Proper investigation differs by circumstance

Preliminary Issues To Consider

Who Should Investigate? Experience/Background Neutrality and Impartiality Approved by Both Parties In writing Typically HR Personnel Inform Need to Know Persons

Documents/Evidence Needed Personnel File Performance Appraisals Email Communications Prior Investigations Performed Voicemail/ Cell Phone Communications

Applicable Policies Personnel Polices Collective Bargaining Agreements Handbook Memos Benefits Books Collective Bargaining Agreements Law

Interim Actions Typically Involves Removing Accused Duty to take interim steps to stop alleged harassment, protect employees, organization property, or integrity of an organization during an investigation. Bradley v. Dept. of Corrections & Rehab (2008); Swenson v. Potter (9th Cir. 2001) Typically Involves Removing Accused Temporary Transfer Administrative Leave Paid/Unpaid Contact Person/Return Process Notice NOT disciplinary Proceed Carefully with Complainant

Witnesses List of Witnesses Is there a preferred order? Complainant Accused Suggested Witnesses Is there a preferred order? Location of Interviews Written Statements Prior to Interviews

Conducting the Investigation

Initial Meeting With Complainant Ask Questions 5 W’s Repeated or Isolated Witnesses or Persons Told Written Materials Conclude Meeting Thank Complainant Anti-Retaliation Confidentiality Process No promises Document Writing from Complainant Issue Confirmation Memo Identify issues, investigator, and accused Outline Process

Meeting With Accused Before meeting put together outline with facts Put accused at ease Explain no decisions made yet Outline of process If says complainant is lying ask for motivation Ask for supporting documents and witnesses

Interviewing Witnesses Keep in Mind Possible Motivations Explain the Process Stress Confidentiality Inform Only to Extent Necessary Ask for Additional Information/Witnesses

Helpful Tips for All Interviews Prepare Effective Questioning Have a Checklist Prepare Opening Statement Have Helpful Documents Document Relevant Facts Observe and Record Demeanor/behavior Open Ended Broad to Narrow Listen and Follow-Up Flexible Q’s Ask Hard Q’s Get Chronology No Leading Q’s

Assessing Credibility To Do Immediately After Interviewee Leaves Compare Demeanor to Typical Behavior Body Language Reactions to Allegations Did Witness Inspire Confidence Forthcoming? Logical Consistency Chronology Common Sense

Preparing an Investigation Report

Contents of Report Allegations Made and Relevant Facts Date Investigation Began and Completed Name of Investigator and Neutrality Name and Dates of Interviewees Key Factual Finding and Analysis Application of Guidelines (policies) Final Decision and Conclusion

Instituting Corrective Action

Disciplinary Actions Options Available: Considerations: Oral, Written, or Final Warnings Separation or Transfer Demotion or Reduction in Pay No Raise or Bonus Additional Training or Monitoring Suspension (with or without pay) Termination Considerations: Notice Consistency Confidence in Investigation Employee History/Mitigation

Consider Who Should Be Involved In Making Decision Must be Objective and Unbiased Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011) – Employer can be held liable for actions taken by unbiased decision-maker if non-decision maker influenced the adverse action with his own discriminatory animus.

Corrective Measure – Reasonably Calculated to End Harassment If first measure is not effective, more severe measures must be taken. If employer’s actions do not stop unlawful conduct, they may not establish the affirmative defense. Question is if behavior stopped Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992) did not meet obligation where only held counseling sessions for harasser Star v. West, 237 F.3d 1036 (9th Cir. 2001) did meet obligation where held counseling and changed shifts Should be consistent with past measures

Meet With Complainant and Accused (Separately) Explain Issues, Steps Taken, and Conclusions Drawn Discuss Actions Being Taken Explain Appeals Process and Ability to Bring New Info Notify in Writing Stress Confidentiality Complainant Rights if any retaliation Accused Anticipate Questions and Have Answers

Litigation Issues

Create Investigation File Keep All Information for Investigation Separate Create Final Investigation File Include Written Communications from Complainant Issue Confirmation Memo Admin Leave Notice Investigation Summary Results and Notifications Supportive Notes and Documentation Written/Electronic Communications Destroy all Drafts Mark Confidential

Protecting Attorney/Client Privilege Telling your attorney facts does NOT make them undiscoverable Address written communication to attorney Write “Privileged and Confidential” Copy only people who need to know Do not share or discuss with others

Responding to Outside Agencies Employee may file charge with DFEH, EEOC, Labor Commissioner, OSHA Work with counsel Choose single person for all communication with the agency Draft letter summarizing investigation

Privacy Protect privacy of individuals as much as possible Make all documents “Need to Know” Create policies stating that there is no expectation of privacy at work

Question and Answer