1. Workplace Investigations: How the Employer Should Do Them and How the Plaintiff Can React to Them Jennifer M. Trulock University of Houston Law Foundation Advanced Employment Law June 2007

2. Picking Your Investigative Team Investigators to Use The right "investigative temperament" Call "central casting" Lawyers--Maybe, but think through the evidentiary and privilege issues

3. Investigators NOT to use The accused Employees with vested interests in outcome Employees lacking restraint Employees with the wrong personality Former law enforcement personnel HR representatives--some

4. Train Investigators to Develop the 5 Major Types of Evidence Direct Evidence Circumstantial Evidence Anecdotal Evidence Statistical Evidence Comparative Evidence

5. Things to Do Before the Investigation Begins

6. Suspend the Employer's Record Retention Policy as to any Possibly Relevant Documents/Information

7. Collect, Preserve and Examine All Computer Resources Computer Network Removable disks and CDs PCMCIA Cards Personal Digital Assistants Temporary Files (including Internet files) Swap Files Thumb drives, external hard drives Metadata Audit trails, computer logos and access lists Cache files, browser and cookie histories Tape back-ups

8. Promptly Invoke the Attorney-Client Privilege Anticipate and Address "Potential Conflict" Issue

9. Clarify Whom the Investigating Lawyer Represents

10. Reminders To Employee Witnesses: No Retaliation No Promise

11. Identify and Isolate All Potentially Applicable Policies

12. Anticipate "Ex Parte" Communications

13. General Considerations for All Investigations Investigate Complaints Promptly and Thoroughly Questions to Ask in Harassment Cases Were the sexual advances welcomed? What is the complainant's attitude? What is the complainant's emotional character? What do we know about the accused? Is the complaint late?

14. Special Considerations Relative to Union Settings Johnnie's Poultry Statement Weingarten rights

15. Privacy Concerns Raised by Organizational Investigation Techniques Drug Testing Polygraph Testing Workplace Searches Custodial Interrogations

16. Privacy Concerns Raised by Organizational Investigation Techniques Surveillance, monitoring, eavesdropping, wiretapping Hidden cameras Monitoring of computer operations

17. Privacy Concerns Raised by Organizational Investigation Techniques "Informers," "spies," or "plants" Lawyer participation in deception by undercover investigators

18. Privacy Concerns Raised by Organizational Investigation Techniques Fair Credit Reporting Act Issues

19. Five Management Rules of Thumb (and One Suggestion)

20. 1. Discourage Electronic Mail Communications Informality of electronic mail results in imprecise/incomplete inquiry and (possibly) bad advice Confidentiality of electronic communications may not be assured

21. 2. No Good Deed Goes Unpunished

22. 3. Trust Everyone...But Cut the Cards

23. 4. Treat Like Cases Alike; Treat Different Cases Differently

24. 5. Assume Everything is On the Record

25. One Suggestion: When In Doubt, Call Your Lawyer.

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