Conducting an Effective Internal Investigation in the United States Tuesday, January 12, 2010 © Employment Law Alliance

Presenters Stephen J. Hirschfeld, Moderator, CEO of the Employment Law Alliance and Partner, Curiale Hirschfeld Kraemer LLP, San Francisco, CA Michael E. Blue, Ray, Quinney & Nebeker, Salt Lake City, UT Phyllis G. Cancienne, Baker Donelson, Bearman, Caldwell & Berkowitz, PC, Baton Rouge, LA © Employment Law Alliance

Presenters Leonard Court, Crowe & Dunlevy, Oklahoma City, OK Kristine Dunne, Arent Fox LLP, Washington, DC Jon Sogn, Lynn, Jackson, Shultz & Lebrun, P.C., Sioux Falls, SD © Employment Law Alliance

Presenters Patricia L. “Penny” Zobel, DeLisio Moran Geraghty & Zobel, P.C., Anchorage, AK © Employment Law Alliance

Introduction © Employment Law Alliance

Standards of Proof Beyond a reasonable doubt Clear and convincing evidence Preponderance of the evidence Good faith investigation/reasonable conclusion © Employment Law Alliance

The Initial Meeting – Purpose/Objective Instilling confidence in the system and you Initial Considerations © Employment Law Alliance

The Initial Meeting Gathering all material facts: Who? What? When? Where? Why? Determining if formal or informal investigation is needed © Employment Law Alliance

Planning the Investigation: Important Considerations What facts/documents can you unilaterally gather? Who should conduct the investigation? Who should be interviewed? How should the interviews be conducted? © Employment Law Alliance

Interim Actions © Employment Law Alliance

Key Points of Consideration Will administrative leave take place before or after you confront the accused? Will removing the accused make things better or worse? Who should you consult beforehand? HR? Legal? Is a risk or threat assessment necessary? © Employment Law Alliance

Key Points of Consideration How will you respond to the accused when asked why removing him or her is necessary? What, if anything, should co-workers and members of the public be told about the employee’s departure? © Employment Law Alliance

Key Points of Consideration What are the terms of the leave? With pay? Whom should he or she contact? What should he or she do during that time? © Employment Law Alliance

Anticipating Issues that May Arise Fifth Amendment/right to remain silent/ duty to cooperate Can I get into trouble by cooperating? Right to counsel Right to union representation Minimizing claims of retaliation Protecting confidentiality of investigation © Employment Law Alliance

Meeting with the Accused INITIAL CONSIDERATIONS Professionalism/mental preparation OUTLINE THE ISSUES Carefully analyze all facts LIST THE FACTS/CREATE A CHRONOLOGY © Employment Law Alliance

Meeting with the Accused NOTETAKING IS CRITICAL Do the best you can to capture key facts during the interview and complete your notes IMMEDIATELY after the interview is completed while the information is still fresh. © Employment Law Alliance

Asking Effective Questions Broad to narrow questions Leading questions Tough questions Follow-up questions Committing interviewee to a story/ chronology © Employment Law Alliance

What if the Accused Denies Wrongdoing? Explore possible ill-motives Ask: “Do you have any idea why he/she would make this up?” Ask: “Have you had any conflicts or problems with him/her?” © Employment Law Alliance

Interviewing Witnesses Non-cooperative witness Witness who loves the limelight Witness with an axe to grind © Employment Law Alliance

Assessing Credibility Demeanor Logic/consistency of story Corroborating evidence Circumstantial evidence © Employment Law Alliance

Reaching a Conclusion Relevant vs. irrelevant evidence Determining what evidence is authentic and believable Factoring credibility and ill-motive into the equation Putting together the “pieces of the puzzle” © Employment Law Alliance

Preparing Your Investigation Report Preparation of the report Contents of the report Access to the report Documentation retention © Employment Law Alliance

Attorney-Client Privilege © Employment Law Alliance

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