1. Conducting a workplace investigation
A Presentation for
PASCO
October 24, 2013

2. The Duty to Conduct an Investigation
Once an employer receives a complaint of harassment (or any unlawful employment practice), the employer has a duty to investigate and, if necessary, correct the behavior.

3. Duty to Whom?
Complainant – investigation is a “reasonable step” to prevent discrimination, harassment, etc.
Affirmative Defense if employee fails to take advantage
Accused – employer must have “good cause” to terminate an individual for alleged misconduct
Courts recognize negligent investigation as separate cause of action

4. When to Investigate

5. Do I Need to Investigate This Claim?
Complaint Amounts to Unlawful Conduct
Additional Facts, Documents, or Opinions/Experts Needed
Perform Investigation!
Employee Relations Issue. Not Unlawful Conduct
Do Not Need Additional Information
No Investigation Needed

6. Types of Claims Commonly Requiring Investigation
Harassment
Discrimination
Retaliation
Workplace Violence
Employee Theft

7. Requirements of Investigation

8. Most Important Characteristics
Conduct an investigation to arrive at good faith conclusion based on reasonable grounds supported by substantial evidence.
Cotran v. Rollins Huding Hall Int’l Inc. ; Silva v. Lucky Stores, Inc.
Begin promptly after receiving complaint
Have a policy regarding investigations
Provide both sides opportunity to present position and contradict relevant statements
Allows for progressive discipline
Designate well-trained individual to investigate
Base ultimate findings on objective evidence
Proper investigation differs by circumstance

9. Preliminary Issues To Consider

10. Who Should Investigate?
Experience/Background
Neutrality and Impartiality
Approved by Both Parties
In writing
Typically HR Personnel
Inform Need to Know Persons

11. Documents/Evidence Needed
Personnel File
Performance Appraisals
Communications
Prior Investigations Performed
Voic / Cell Phone Communications

12. Applicable Policies Personnel Polices Collective Bargaining Agreements
Handbook
Memos
Benefits Books
Collective Bargaining Agreements
Law

13. Interim Actions Typically Involves Removing Accused
Duty to take interim steps to stop alleged harassment, protect employees, organization property, or integrity of an organization during an investigation.
Bradley v. Dept. of Corrections & Rehab (2008); Swenson v. Potter (9th Cir. 2001)
Typically Involves Removing Accused
Temporary Transfer
Administrative Leave
Paid/Unpaid
Contact Person/Return Process
Notice
NOT disciplinary
Proceed Carefully with Complainant

14. Witnesses List of Witnesses Is there a preferred order?
Complainant
Accused
Suggested Witnesses
Is there a preferred order?
Location of Interviews
Written Statements Prior to Interviews

15. Conducting the Investigation

16. Initial Meeting With Complainant
Ask Questions
5 W’s
Repeated or Isolated
Witnesses or Persons Told
Written Materials
Conclude Meeting
Thank Complainant
Anti-Retaliation
Confidentiality
Process No promises
Document
Writing from Complainant
Issue Confirmation Memo
Identify issues, investigator, and accused
Outline Process

17. Meeting With Accused Before meeting put together outline with facts
Put accused at ease
Explain no decisions made yet
Outline of process
If says complainant is lying ask for motivation
Ask for supporting documents and witnesses

18. Interviewing Witnesses
Keep in Mind Possible Motivations
Explain the Process
Stress Confidentiality
Inform Only to Extent Necessary
Ask for Additional Information/Witnesses

19. Helpful Tips for All Interviews
Prepare
Effective Questioning
Have a Checklist
Prepare Opening Statement
Have Helpful Documents
Document Relevant Facts
Observe and Record Demeanor/behavior
Open Ended
Broad to Narrow
Listen and Follow-Up
Flexible Q’s
Ask Hard Q’s
Get Chronology
No Leading Q’s

20. Assessing Credibility
To Do Immediately After Interviewee Leaves
Compare Demeanor to Typical Behavior
Body Language
Reactions to Allegations
Did Witness Inspire Confidence
Forthcoming?
Logical Consistency
Chronology
Common Sense

21. Preparing an Investigation Report

22. Contents of Report Allegations Made and Relevant Facts
Date Investigation Began and Completed
Name of Investigator and Neutrality
Name and Dates of Interviewees
Key Factual Finding and Analysis
Application of Guidelines (policies)
Final Decision and Conclusion

23. Instituting Corrective Action

24. Disciplinary Actions Options Available: Considerations:
Oral, Written, or Final Warnings
Separation or Transfer
Demotion or Reduction in Pay
No Raise or Bonus
Additional Training or Monitoring
Suspension (with or without pay)
Termination
Considerations:
Notice
Consistency
Confidence in Investigation
Employee History/Mitigation

25. Consider Who Should Be Involved In Making Decision
Must be Objective and Unbiased
Staub v. Proctor Hospital, 131 S.Ct (2011) – Employer can be held liable for actions taken by unbiased decision-maker if non-decision maker influenced the adverse action with his own discriminatory animus.

26. Corrective Measure – Reasonably Calculated to End Harassment
If first measure is not effective, more severe measures must be taken.
If employer’s actions do not stop unlawful conduct, they may not establish the affirmative defense.
Question is if behavior stopped
Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992) did not meet obligation where only held counseling sessions for harasser
Star v. West, 237 F.3d 1036 (9th Cir. 2001) did meet obligation where held counseling and changed shifts
Should be consistent with past measures

27. Meet With Complainant and Accused (Separately)
Explain Issues, Steps Taken, and Conclusions Drawn
Discuss Actions Being Taken
Explain Appeals Process and Ability to Bring New Info
Notify in Writing
Stress Confidentiality
Complainant
Rights if any retaliation
Accused
Anticipate Questions and Have Answers

28. Litigation Issues

29. Create Investigation File
Keep All Information for Investigation Separate
Create Final Investigation File
Include
Written Communications from Complainant
Issue Confirmation Memo
Admin Leave Notice
Investigation Summary
Results and Notifications
Supportive Notes and Documentation
Written/Electronic Communications
Destroy all Drafts
Mark Confidential

30. Protecting Attorney/Client Privilege
Telling your attorney facts does NOT make them undiscoverable
Address written communication to attorney
Write “Privileged and Confidential”
Copy only people who need to know
Do not share or discuss with others

31. Responding to Outside Agencies
Employee may file charge with DFEH, EEOC, Labor Commissioner, OSHA
Work with counsel
Choose single person for all communication with the agency
Draft letter summarizing investigation

32. Privacy Protect privacy of individuals as much as possible
Make all documents “Need to Know”
Create policies stating that there is no expectation of privacy at work

33. Question and Answer