1. CONDUCTING EFFECTIVE INTERNAL INVESTIGATIONS
Webinar Wednesdays
CONDUCTING EFFECTIVE INTERNAL INVESTIGATIONS
Trisha Gibo, Esq.
May 2, 2018

2. Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

3. Laws Governing Internal Investigations Types of Investigations
DISCUSSION TOPICS
Laws Governing Internal Investigations
Types of Investigations
Role of Investigator & Referral of Cases
Initiating & Organizing the Process
Gathering Evidence
Evaluating the Evidence
Documenting the Investigation
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

4. LAWS GOVERNING INVESTIGATIONS
Employment law
Discrimination and harassment
Retaliation
Labor law
Weingarten rights, grievance, just cause
Other laws
Wrongful termination - public policy
Breach of contract
Defamation
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

5. TYPES OF INVESTIGATIONS
Equal Employment Opportunity
Discrimination, harassment, retaliation, failure to accommodate
Misconduct & other discipline situations
Violation of law, contract or policy
Performance Situations
Inability to perform job duties, failure to meet performance standards, inability to work without close supervision
Just Cause (Unionized Employees)
MISCONDUCT V. PERFORMANCE SITUATION
DISCIPLINE V. COUNSELING
Inability to perform job duties v. failure to follow law, contract policy
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November 15, 2018

6. FOCUS OF THE INVESTIGATION
Simple EEO Investigations
Focus on alleged victim and the work environment
Did the employee violate the laws or regulations
Misconduct Investigation
Focus on applicable laws, regulations, contract requirements, and rules
Did the employee violate them?
Performance Investigation
Focus on job functions, standard operating procedures, performance standards, and performance expectations
Did employee fail to meet them?
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

7. When you knew or should have known of the possible problem
WHEN TO INVESTIGATE
When you knew or should have known of the possible problem
“Formal” complaint is not necessary
No such thing as “off the record” or “confidential”
Supervisor/manager knowledge is imputed
Time is of the essence
EEO cases require immediate investigation
Union and individual contracts generally have time frames
Long lag times will affect your credibility as a Factfinder
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

8. YOUR ROLE AS AN INVESTIGATOR
Your Job is to be the Factfinder
To investigate a complaint or possible violation
To properly apply the correct investigation procedures
To conduct the investigation expeditiously
To identify potential problems and, when appropriate, refer those problems to others to resolve
To gather all applicable information (documents and testimony)
To make “factual findings” (i.e. determine what happened), based on the evidence gathered
To prepare extensive documentation of the process and your findings
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

9. WHEN YOU RECEIVE AN ASSIGNMENT
Determine If You Are Able To Serve
Are you capable of conducting and completing the investigation in a timely manner?
Do you have a personal conflict of interest?
Determine if Another Investigator, Or a Separate Investigation, is Appropriate
Cases That Should Be Referred Elsewhere
Complex EEO Cases
Sensitive Cases
Workplace violence situations
Ethics issues
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

10. GENERAL PROCEDURES FOR INVESTIGATIONS
Identify the scope of the investigation
Type of investigation, time period, who is doing what
Determine if it’s necessary to separate alleged victim and the accused (EEO cases in Hawaii)
Notification to parties (per CBA)
Interview the relevant witnesses
Review relevant documents
Evaluate the evidence & make factual findings
Document findings and submit report to decision-maker(s)
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

11. PLANNING THE INVESTIGATION
Review the complaint or referral
Outline or chart the allegations & factual issues you will need to investigate
Identify the pertinent witnesses
Identify the pertinent documents
Work out a time line for the investigation
Get to work!
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

12. CONDUCTING INTERVIEWS
Who Should Be Interviewed?
Third party submitting report (if applicable)
Alleged victim(s)
The accused
Any witnesses identified by the third party, the alleged victim(s), and/or the accused
Use your judgment to decide how many witnesses are needed for each event of question of fact
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

13. CONDUCTING INTERVIEWS
Procedures for Interviews
Arranging the interview:
One by one
Private
May bring “representative” in certain situations
Unionized employees entitled to have representative
Non-union employees not required (exception if translation is needed)
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

14. CONDUCTING INTERVIEWS
Information Given to Interviewees:
Purpose of the interview
Cautioned on need for confidentiality
Instruct on non-retaliation policy
Remind them of investigation procedure
What to expect after investigation
Instructions on who to contact after interview if they have questions, concerns, or they feel they are being retaliated against (EEO cases)
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

15. CONDUCTING INTERVIEWS
What Should Be Discussed?
Details
Name(s) of alleged victim(s)
Name(s) of the accused
Description of inappropriate behavior (each incident)
Dates and times of each incident
Witnesses
Documents
Ask if they kept logs and, if so, request a copy
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

16. CONDUCTING INTERVIEWS
What To Watch For
Demeanor
First-hand knowledge versus hearsay or rumor
Credibility & bias
Ability to corroborate testimony of others
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

17. CONDUCTING INTERVIEWS
What To Do
Open ended questions, then narrow down
Take notes, summarize statements using witness’s own words
Have witnesses review and make corrections
What Not To Do
Group interviews
Electronic recording, absent permission
Allow vague, conclusory statements
Make editorial comments
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

18. What Should Be Reviewed
REVIEWING DOCUMENTS
What Should Be Reviewed
Personnel files & discipline records of the parties
Supporting records (e.g. company files)
Victim(s) notes, if any (EEO cases)
Possibly third-party records
Documents identified by parties or witnesses
Company records that may corroborate one side or the other
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

19. REVIEWING DOCUMENTS Precautions for Specific Documents Medical records
Need medical authorization
Need HIPAA release
Personnel files
May need release
Third Party Records
May require release
, Computer & Other E-Records
Requires notice
May need to get employee’s authorization
Social Media
Need qualified vendor
Need consent
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

20. EVALUATING THE EVIDENCE
Do not make decision until all evidence is gathered
Key questions to ask:
Did the employee know the rules?
Did the employee violate the rules?
Are there mitigating circumstances?
Preponderance of the evidence establish guilt
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

21. EVALUATING THE EVIDENCE
Credibility, Corroboration, And Contemporaneous Records
Demeanor at interview and during investigation
Consistency of memory and responses
Bias and motive to falsify
Inherent implausibility
Corroboration of information through
Contemporaneous documentation
Corroborating witnesses
Past record (history of similar behavior)
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

22. IMPORTANCE OF DOCUMENTATION
Impact on Litigation
Witnesses authenticate documents (exhibits)
Exhibits boost the credibility of witnesses
Can be used to refresh a witness’ recollection
Witnesses establish the facts and chronology for the case
What happened and when
Investigators and their reports are KEY WITNESSES in litigation
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

23. WHAT SHOULD YOU DOCUMENT
Witness Statements
Name of witness
Job title, department or office, and work shift of witness
Date of interview
Instructions given to witness
Date of incident
What happened
First-hand knowledge
Details
Relevant documents
Attach copies
Revisions (initialed) and signature
Date statement signed
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

24. WHAT SHOULD YOU DOCUMENT
Your Investigative Report
Your name
Your job title, department or office
Scope of the investigation
Subject(s) of the investigation
Dates the investigation was conducted
Brief summary of procedure followed
Witnesses interviewed, documents gathered
Note issues that came up and were deferred to other investigations
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

25. WHAT SHOULD YOU DOCUMENT
Your Investigative Report
Brief summary of what each witness told you and the documents they provided
Attach witness statements and documents
Your factual findings (what happened & when)
Refer to witness statements that you found credible
Point out corroborating testimony
Point out documents that corroborate witness testimony
Point out what you found incredible and why Explain your findings
Findings should address factual issue you were tasked to investigate
Your signature and date of report
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

26. WHAT SHOULD YOU DOCUMENT
Your Complete Investigation File
Investigation plan and schedule
Copy of applicable policy, procedure or rule that was violated
Correspondence with witnesses (include s and notes)
Witness statements & any docs provided
Copies of any other documents or records you relied upon (e.g. employer’s rule, SOP, business record)
Investigation Report
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

27. Plan out your investigation
FINAL THOUGHTS
Plan out your investigation
Ensure that you are timely in conducting and concluding the investigation
Remember your role as neutral fact-finder
Stay within the scope of your investigation
Stick to your checklist
Watch for credibility and corroboration
Create good documentation
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018

28. ANY QUESTIONS? If you have any follow up questions, email me at:
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Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 15, 2018