Conducting Internal Investigations: Process and Ethical Challenges Stephanie L. Russ Greg Dimmick

Conducting Internal Investigations: Process and Ethical Challenges How to conduct an internal investigation How to respond to an EEOC charge Attorney-client privilege issues when in-house counsel is involved

How to Conduct an Internal Investigation An employee, Tomas, calls and says that his manager, Mario, is harassing him. You should: Tell Tomas to report the matter to his supervisor Tell Tomas to “toughen up” and live with it Tell Tomas that you appreciate his call and that the company will be investigating the matter immediately

Internal Investigation Steps Pre-investigation follow-up and analysis Meet with the complainant; determine if an investigation is needed Plan the investigation Conduct the investigation (document appropriately); assess credibility Make a recommendation regarding next steps

Step 1: Pre-investigation Contact complainant immediately and let him know the company will investigate Determine the subject matter of the issue: discrimination, harassment, illegal activity, etc. Review company’s policies regarding the issue Review files relating to the persons involved in the complaint

Step 2: Meet with Complainant When conducting the meeting with Tomas, you decide to: Put him in a small, hot room with no windows; you want to “make him sweat” Bring two others with you and create an interrogation panel Make him as comfortable as possible and ask open-ended questions

Step 2: Meet with Complainant Make employee as comfortable as possible; schedule plenty of uninterrupted time Express appreciation for coming forward; repeat company’s policy against the behavior Reassure that no retaliation will occur; stress that any suspicion of retaliation must be reported immediately Discuss confidentiality requirements of employee and employer Ask who, what, when, where, why questions Have complainant sign his statement of events

Step 2: Determine if Investigation is Needed Will a single act or answer resolve the complaint Are other employees involved Do you need more facts

Step 3: Plan the Investigation After meeting with Tomas, you do not believe his side of the story, but you went to some seminar, and an attorney told you that you should investigate, so you: Curse the day the attorney was born Curse the day Tomas was born Curse the day you were put in charge of this investigation All of the above

Step 3: Plan the Investigation Review internal policies, files, and documents Notify accused of the incident; schedule this interview first before interviewing potential witnesses; use same technique as for complainant Decide others who should be interviewed: observers, others with relevant information, persons the accused and the accuser have asked to be interviewed, immediate supervisor Determine if interim actions are necessary

Step 4: Conduct the Investigation You let your immediate supervisor know of the incident and what your preliminary results show, your boss says, “I just want this to go away, and I want it to go away fast,” you: Say okay, and immediately fire the accused Say okay, and decide to conduct as few interviews as possible; Explain why a thorough investigation is the company’s best hope of making this “go away,” even though it may not be as fast as the boss would like

Step 4: Conduct the Investigation Prepare, prepare, prepare Explain why you are investigating, but do not “pick a side”; explain why the person being interviewed is being interviewed Emphasize confidentiality and no-retaliation policy Draft preliminary questions

Step 4: Conduct the Investigation Start with broad who, what, when, where, why, how questions Do not put words in interviewee’s mouth Ask tough questions, but save unfriendly or embarrassing questions until the end of the interview Let interviewee’s answers guide you to questions you may not have planned to ask

Step 5: Assess Information and Make Recommendation The first interview was that of the accused, and it lasted 2 hours. You are exhausted. You put the file away to work on later You decide to assess each file after all interviews have been done You assess Mario’s interview and complete his file while your impressions and the information is fresh in your mind

Step 5: Assess Information and Make Recommendation Make notes as soon as interviewee leaves Review interviewee’s chronology of events Note demeanor; non-verbals What were the admissions and denials Were conflicting statements made Were explanations plausible

Step 5: Assess Information and Make Recommendation Were policies violated Were the violations serious or minor Do any laws require you to take action What factors mitigate against discipline; or at least delaying discipline

Documenting Interviews and Assessments If your company has documentation guidelines, make sure that you have followed them Get signed statement from complainant at the beginning If written statements are obtained (complainant or witnesses), they are discoverable Investigator notes are discoverable if not taken by an attorney; notes should be on paper that contains no other non-investigation information

Documenting Interviews and Assessments Discuss your findings and conclusions with only those need-to-know persons Make sure that accused and accuser’s investigation files are properly documented but kept confidential; files should be labeled “Need-to-Know, Confidential”

How to Respond to an EEOC Charge Because you were not in charge of the investigation at the time, Tomas’ complaint was not sufficiently investigated. Tomas was fired, and he filed a Charge with the EEOC. You receive a copy of the written Charge and the Request for Information (RFI) in the mail and prepare the following Response:

How to Respond to an EEOC Charge Dear EEOC, We are fine. How are you? We are not guilty. Thank you. Love, Employer

EEOC Charge: Rules to Live By Cooperate, cooperate, cooperate Never speak negatively about the Charging Party (CP) Make EEOC investigator’s life as easy as possible Do not ignore deadlines; keep lines of communication open

EEOC Response: Assess Review Charge, RFI, and CP’s actual statement carefully Immediately review internal investigation files, if any; if no files, conduct preliminary investigation Ask the EEOC for an extension; state that you are thoroughly investigating and fully intend to comply; conduct full, internal investigation

EEOC Response: Assess After assessing the situation, you determine that the facts are not good for the company. You should: Ignore the Charge and hope it just “goes away” Submit to the EEOC a full Response to the Charge Request mediation with the EEOC

EEOC Response: Mediation Mediation allows for a written position statement, but neither a full Response nor a detailed position statement to the RFI is required – this is critical Refer to EEOC Rules to Live By; determine the mediator’s preferences for position statement format Keep communications open; do not ignore deadlines Is the mediator truly neutral

EEOC Response Tomas refuses to enter into mediation, and you are notified that the company must move forward with providing a complete Response. You should: Say okay, and just move forward Tell the EEOC, “Just sue us,” and slam down the phone Review the Charge and RFI; determine if the RFI is extensive, and ask that it be modified, if applicable; but plan to move forward with your Response

EEOC Response: Position Statement Response will include company’s Position Statement and response to EEOC’s RFI Position Statement: Employer’s written explanations of the non-discriminatory reasons for the actions taken with the CP; should include denials (if true) and legal defenses RFI: Answers to specific information requested by EEOC Provide information in a “pretty,” user-friendly format

EEOC Response: RFI Provide answers to RFI first Typically the EEOC asks factual information about the number of employees; persons with knowledge; contact information, etc. Provide a short summary that explains the nature of your business

EEOC Response: Position Statement Provide a brief summary of the company’s position For each allegation/statement, admit or deny the allegation. Start each sentence with “The company specifically denies…”, if a denial is appropriate

EEOC Response: Position Statement Tell the company’s non-discriminatory story and provide supporting evidence Pertinent language from the company’s policies relating to the Charge and a copy of the signed receipt page of the handbook, if available Witness statements; affidavits Historical documents: performance appraisals, disciplinary write-ups, communications

EEOC Response: RFI Provide legal defenses, including case law Knowing that a CP’s actions can actually be a defense for the employer is critical Discuss statutory requirements that may be helpful to the company’s defense Provide summary conclusion; repeat denial of Charge

Attorney-client Privilege Duty to investigate while simultaneously protecting the company’s interests Protecting attorney-client privilege Mitigating discoverable information

Thank You Stephanie Russ Greg Dimmick 972-852-1710 972-852-1708 972-852-1710 972-852-1708 stephanie.russ@mrkpc.com greg.dimmick@mrkpc.com