Presented by DeGroot Management Services 2015 LEGAL DISCLAIMER The information contained in this presentation is provided for informational purposes only, and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any content included in this presentation without seeking legal or other professional advice. The contents of this presentation contain general information and may not reflect current legal developments or address your situation. We disclaim all liability for actions you take or fail to take based on any content on this presentation

 Why Conduct an Investigation?  Recent Developments  Setting Goals & Recognizing a complaint  Important Steps  Interviewing Process  Evaluating Interviews/Determination & Final report  After the Investigation & Document Retention  Common Mistakes  Questions

 Employee complaints of harassment or discrimination  Employee complaints of retaliation  Supervisor/Manager witnesses incident  Allegations of misconduct, theft, etc.

 Once a complaint is received, Federal and State laws impose a duty on the part of the employer to investigate.  Failure to investigate can create additional liability and make the company “look bad”.  A good investigation can limit or avoid liability in some cases.

2014 – EEOC investigated 88,778 charges filed. Race discrimination was 35%, sex discrimination, including sexual harassment and pregnancy discrimination at 29% and disability was 28%. Workplace Harassment, including Sexual Harassment cases handled by EEOC resulted in $93.9 million in monetary benefits awarded. (

 To determine if a problem exists  Protect the Employer from Liability  Opportunity to demonstrate fairness by the Employer  To encourage employees to report problems to management.

 Written or verbal communication from employee complaining of harassment or other misconduct.  Employee verbally states he/she has been treated badly or unfairly  Supervisor reports that inappropriate acts or misconduct has occurred  DOES NOT HAVE TO BE IN WRITING, AND CANNOT BE REQUIRED TO BE IN WRITING

 Statements that employee is “fed up” with something about the Employer  Comment from employee directly or overheard by supervisor about misconduct in workplace, but no specific “complaint”  NO MAGIC WORDS

1. Determine if immediate action required Suspension of employees (paid or unpaid) Transfer to other departments, separate employees during investigation Communication with complainant

2. Choosing the Investigator Demeanor/male or female/Internal or external/attorney or non-attorney Can’t be complainant/accused/witness Can judge credibility / Common sense/organized/analytical Understands the importance of investigation Can think quickly/ Can be impartial and objective Knowledge of policies and/or bargaining agreements Has the time to conduct a prompt investigation

Investigator could be called as a witness Attorney-client privilege ? Credibility issues with Company personnel Are they an effective interviewer? What is Relationship to the Company or to interviewees ?

In-house HR personnel - relationship with those involved in the conduct? In-house counsel - Concerns with preserving attorney-client privilege - appropriate with executive involvement/direct reports

Security department personnel Outside counsel - becomes “investigator” and “witness” in lawsuit could damage attorney-client privilege or be disqualified from representing - Perception of bias Outside HR consultant

Interviews should be in private setting with limited interruptions (may require off-site location) Two people present - questioner and note taker Interview one at a time – not in a group For Union workforce, Employee has right to Union Rep if questioning could lead to discipline

3. Review all pertinent documentation s and other electronic communications and files Employer’s policies Any Collective Bargaining Agreements Personnel files

4. Make a decision based on all of the evidence and write a final report. 5. Keeping documentation on file 6. After Concluding Investigation

1. Order of Interviewing (case by case, but usually) A. Complainant B. First hand witnesses C. Accused D. Additional witnesses 2. Suggested Script Why are we here? Employees role –expectation of honesty and of cooperation Seriousness of investigation Confidentiality will be maintained, to the extent possible consistent with the Company’s obligation to conduct a thorough investigation Prohibition against retaliation

 Employer will not permit retaliation of any kind against anyone who opposes a discriminatory practice, makes a good faith complaint about harassment and/or discrimination, or furnishes information or participates in any manner in an investigation of such a complaint. Retaliation includes any conduct, whether or not workplace or employment-related, directed at someone because he or she made a complaint of discrimination or participated in such an investigation, which might deter a reasonable worker from making or supporting a charge of harassment or discrimination.  Retaliation is unlawful and will not be tolerated. Any individual found to have engaged in retaliation will be subject to disciplinary action, up to and including termination of employment.  If you feel as though someone is subjecting you to retaliation as a result of a complaint or your participation into the investigation of a complaint, you should contact (_name & number_) Have interviewees sign and date

Techniques Slow down Simple questions first, then ask harder questions. Get a timeline Observe body language Rumor or speculation should be noted, nothing is “off the record” Confirm information at conclusion, repeat information, “Is there anything else?”

 Details are extremely important, specifics of what happened, what was said, when did it occur, how often, any witnesses.  Complained to others? Similar complaints from other employees?  Anything else I should know?  Thank them for coming forward-Report any retaliation immediately-sign off on retaliation form

 Interview every witness that the Complainant identifies  Question responses that seem “canned”  If these are former employees, meet in neutral location where possible.  Anything else I should know?  Thank them for cooperation/retaliation declaration

 Get all the details, and a response from the accused on each and every allegation made by the complainant. Ask them to identify potential witnesses that support their story and interview those witnesses as well  Why would the complainant lie or make this up?  Anything else ?  Thank you/ Anti-retaliation declaration

 What did he/she know?  If he/she knew about it, was it reported to HR, what was done? (if nothing, consider discipline for supervisor)  Any performance issues for Complainant/Any disciplinary issues for Complainant  Anything else/Retaliation

Determining witness credibility Be Objective – is the interviewee believable, too vague or too consistent? Consider any possible Motives or Bias Consider attitudes and demeanor

 Review all information carefully  Indicate whether the complaint was substantiated or unsubstantiated, and why.  Keep notes and determination in separate complaint file, marked confidential

 Take Immediate Corrective Action  What is reasonable corrective action? Consider severity, frequency and duration of conduct Corrective action should stop the offensive behavior Should be proportionate to the offense

 Corrective Action for the Accused may include: Termination Discipline (suspension without pay, written warning, etc.) Transfer of Accused, demotion, loss of promotion or bonus, reduction in pay, etc. (Proceed with Caution) Training Counseling

Remedies for the Complainant may include: a. Offering paid leave or Company-paid counseling b. If employee confirms he/she wishes to leave Company, negotiate severance package (with complete release) c. Paying for any costs incurred (counseling, medical costs, loss of benefits/pay or accrued leave for absences caused by harassment, etc.)

 Meet with the Accused and Complainant separately to provide him/her with summary of conclusion(s) of investigation and any action, if any, to be taken  Memo should remind both parties of prohibition of harassment and retaliation  Memo should remind both parties of open-door policy or other process if he/she is dissatisfied with results and action taken

 Keep all files, including interview notes, witness statements, correspondence and documents gathered for the investigation, in a separate file, marked “Investigation”—these should not be kept in a personnel file  Mark all investigation files “confidential” and keep in a locked file.

 Failure to investigate in a timely manner  Promising complete confidentiality to any party  Failing to properly document the investigation  Failing to interview the Accused prior to reaching a conclusion  Not having a reporting structure in place

Employers must conduct a timely and thorough investigation events that occur in the workplace. Your Investigation and documentation can provide the necessary evidence to defend against a complaint by past, as well as current employees. A good investigation can limit or avoid liability in some cases.

Thank you for attending! JoLynn Haresign DeGroot Management Services