Lessons Learned in Workforce
Management from Experienced
Employee and Employer
Representatives
April 16, 2014
April 24,
2013
Ryan Law Firm, LLC
WORKPLACE INVESTIGATIONS:
An Overview
• The Benefits of an Effective Investigation
• Ten Steps to a Successful Investigation
• Common Investigation Mistakes – and
How to Avoid Them
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CAVEAT:
Investigations Require Judgment Calls
Although most investigations will require you to
consider each of the ten steps, every situation is
different. There will be conflicting stories and no
clear answers about what happened and what you
should do. You’ll have to decide which problems
merit a closer look, whom to interview and what
documents to review. When your investigation is
complete, you’ll have to decide what you think
really happened.
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BENEFITS OF AN EFFECTIVE
INVESTIGATION
Among its many benefits, a proper investigation will help you:
• Figure out what happened: acting before you know the
facts could lead you to discipline the wrong employee.
• Deal with employee problems early: an investigation will
help you figure out who is behind a workplace problem so that
you can take action before things get worse.
• Enforce company policies: showing employees that there
are consequences for misconduct will help you deter future
trouble and keep employees on the right track.
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• Encourage reporting: encouraging employees to come
forward with concerns means that you’ll hear about workplace
trouble before it grows into a more serious problem.
• Avoid or counter bad publicity: consistently addressing
complaints shows that the company cares about its
employees and bolsters the company’s reputation.
• Protect your company from lawsuits: showing that your
company took action right away can protect the company from
liability in many cases.
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TEN STEPS TO A SUCCESSFUL
INVESTIGATION
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Decide whether to investigate
Take action immediately, if necessary
Choose an investigator
Plan the investigation
Interview
Gather documents and other evidence
Evaluate the evidence
Take action
Document the investigation
Follow up
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COMMON MISTAKES AND HOW TO
AVOID THEM
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Failing to Investigate
Delaying
Being Inconsistent
Retaliating
Failing to Be Thorough
Compromising Confidentiality
Losing Objectivity
Using Strong-Arm Interview Tactics
Invading Employee Privacy
Using Polygraphs Improperly
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1. FAILING TO INVESTIGATE
Consequences: Exposure can come not only from employees,
but also from third parties or customers through negligent
retention and negligent supervision claims.
Bottom line: Never ignore complaints of wrongdoing. Even if a
situation seems straightforward, do some initial research
before deciding that an investigation is not warranted. Always
make sure you know all the facts before taking disciplinary
action against an employee.
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2. DELAY
The longer you postpone the investigation, the more
serious your liability could be, particularly in a
sexual harassment or workplace violence situation.
Once you learn of a serious problem, get moving
right away. If you absolutely have to wait (because
the victim is on vacation, for example) document the
reason for the delay.
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3. INCONSISTENCY
• Avoid discrimination claims by treating similar
problems similarly. If you decide to investigate one
claim but not another, make sure you have a valid,
business-related reason for doing so. If you punish
one employee more harshly than another, be
prepared to justify the difference.
• Inconsistency is sometimes justified, but can be a
sign of unconscious bias at work.
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4. RETALIATION
• Any action that could deter a reasonable worker from coming
forward with a complaint might constitute retaliation.
Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct.
2405 (2006).
• An employee need not show that he or she was fired or
demoted to bring a retaliation claim. Lesser forms might
qualify as retaliation, if they could discourage employees from
bringing complaints.
• Warn everyone involved in an investigation that retaliation
won’t be tolerated.
• If you must separate the workers, either move the worker
accused of misconduct, or make sure the worker who
complained is in favor of the change you propose.
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5. FAILING TO BE THOROUGH
Performing an incomplete or sloppy
investigation – by failing to interview key
witnesses, neglecting to review
important documents, or ignoring issues
that come up during the investigation –
can have many of the same negative
consequences as failing to investigate at
all.
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6. COMPROMISING CONFIDENTIALITY
• Telling a witness what another witness said, revealing
your personal opinion to one of the employees involved,
or publicizing the complaint in the workplace can lead
others to doubt your objectivity.
• Employees may change their statements, either
subconsciously or intentionally, based on what you say.
• An employee who believes you maligned his or her
reputation by spreading false information can sue for
defamation.
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7. LOSING OBJECTIVITY
The best antidote for this problem is to remember your
role. When you investigate, you are acting on behalf of
the company. If you feel you are unable to put your
personal feelings aside, get some help. Ask someone
else within the workplace (or hire an outside
investigator) to conduct the investigation or get some
advice from a lawyer.
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8. STRONG-ARM INTERVIEW TACTICS
• Using physical means to restrain an employee, or taking
actions that lead the employee to believe that he or she is not
free to go, can lead to a claim of false imprisonment.
• The company is free to take disciplinary action against an
employee who refuses to answer legitimate questions or
participate in a workplace investigation. However, you cannot
use physical means or threats to prevent the employee from
leaving.
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9. INVADING EMPLOYEE PRIVACY
Searches: Company policy should reserve the right to search
employee workspaces so that the contents of employees’ desks
or lockers are not considered private.
Electronic Monitoring: As long as company has a written policy
letting workers know that it might monitor their e-mail or use of
the Internet, the company has the right to read employee e-mail
sent on company equipment or company can monitor websites
employee visited using company’s computer network.
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DECIDING WHETHER TO
INVESTIGATE
Factors to consider in determining whether
to investigate:
•
•
•
Whether there is a dispute over what
happened
How serious the alleged misconduct is, and
How similar complaints have been handled in
the past.
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ARE THE FACTS IN DISPUTE?
If everyone agrees on the basic facts, you
can move on to figuring out how to deal
with the problem.
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HOW SERIOUS IS THE PROBLEM?
Incidents that implicate a violation of
company policies, ethical concerns,
misuse of company property,
inappropriate dealings and other
examples may trigger an investigation,
even if seemingly minor. This is because
they could be examples of more
pervasive, systemic problems.
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HOW HAVE SIMILAR PROBLEMS BEEN
HANDLED?
CONSISTENCY
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TAKE IMMEDIATE ACTION, IF
NECESSARY
• Some situations will require you to take
precautionary steps right away, even before
the investigation begins.
• Examples:
• Employee complains supervisor has fondled her
repeatedly;
• Employee threatens to bring a gun to work; or
• Employee appears to be stealing trade secrets to
give to a competitor.
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AVOID UNPAID SUSPENSIONS
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CHOOSE THE INVESTIGATOR
• Decide first whether someone from the company can
investigate. Some situations may warrant an outside
investigator.
• Two person approach: one person asks questions,
the other takes notes. Benefits: each investigator
can serve as a witness for the other and you have
two sets of eyes and ears.
• But, always look at the situation. Some employees
may feel intimidated by having two people present.
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Consider bringing in outside help if:
• More than one employee complains about the same
serious problems
• The accused is a high-ranking person in the company
• The complaining employee has publicized the complaint
in the workplace or in the media
• The complaining party has hired a lawyer, filed a lawsuit
or filed charges with the EEOC or other state or federal
administrative agency
• The accusations are extreme (allegations of rape,
assault, etc.)
• For various reasons, no one is available to investigate
the complaint fairly and objectively
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Part 3: GATHERING INFORMATION
• Conducting Interviews
• Gathering Other Evidence
• Follow-Up Interviews
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INTERVIEWING THE COMPLAINING
EMPLOYEE
In most instances, you will start with the
complaining employee.
It may also be prudent to interview a supervisor
first in order to ascertain whether the complaint
can be maintained as confidential under the
Banner Health case (discussed later).
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INTERVIEWING ACCUSED EMPLOYEES
Cover at outset:
•
•
•
•
•
Let the employee know that a complaint has been made and that you
are investigating the situation.
Assure the accused employee that you have not reached any
conclusions and that you will listen carefully to everyone involved
before taking action.
Explain that you expect the employee to give accurate information.
Explain that you will maintain confidentiality as much as possible,
and if you have determined that the situation gives rise to the need
for a witnesses to be provided protection, that evidence is in danger
of being destroyed, that testimony may be in danger of being
fabricated, or there is a need to prevent a cover up only then should
you instruct the employee not to talk to coworkers about the
investigation or the complaint.
Tell the employee that retaliation is forbidden.
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DOCUMENTS CHECKLIST
 Company policies
 Email messages
 Postings to company bulletin board
(electronic or corkboard)
 Correspondence
 Performance evaluations
 Work samples
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DOCUMENTS CHECKLIST
 Written warnings and other disciplinary
records
 Customer complaints or comments
 Commendations
 Documents signed by the employees
involved
 Attendance records
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DOCUMENTS CHECKLIST
 Payroll records
 Time cards or other records showing
hours worked
 Work schedules
 Inventory records
 Expense reports
 Computer records (or Internet sites
visited, productivity, etc.)
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DOCUMENTS CHECKLIST
 Productivity reports
 Notes taken by the employee involved
(i.e., if an employee made a record of
harassing comments or kept a journal of
workplace incidents)
 Files from any previous investigations of
the same employees or same types of
incidents.
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FOLLOW-UP INTERVIEWS
Interview accused employee if you have new details in order to
get his or her response: Courts are more likely to find an
investigation was fair and thorough – and its outcome reliable – if
the accused employee is given the opportunity to respond to all
the evidence before the company makes a final decision.
As to complaining employee: if accused employee or witnesses
have denied the complaining employee’s allegations or offered
reasons why the complaining employee might not be telling the
truth, you should let the complaining employee respond.
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PART 4: MAKE AND DOCUMENT YOUR
DECISION
• Evaluate the Evidence
• Decide Whether Misconduct Occurred
• Take Action
• Document Your Decision
• Follow Up
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PREPARE AN INVESTIGATION REPORT
•
•
•
•
•
•
Remember your audience – the document you write today could end up in
the hands of a lawyer suing your company. Any important omissions,
inappropriate comments or random musings could come back to haunt
you.
You do not need the extraneous details – just all of the major decisions
you made and why.
If you did not believe a witness’ statement, make a note regarding the
reasons for your skepticism.
If you found no misconduct occurred, write down all of the reasons for
your decision.
If you believe employee engaged in misconduct, clearly state your finding.
However, avoid saying the employee broke the law or committed a legal
violation (such as saying that he or she sexually harassed someone). If
you state that the employee committed an illegal act, you may have
conceded the company’s liability.
Best practice if misconduct found: record that employee committed
misconduct, violated company policies, or acted inappropriately.
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SPECIAL CONSIDERATIONS
IN INVESTIGATING THE
“PROTECTED ACTIVITY”
COMPLAINT:
THE BANNER HEALTH CASE
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CONFIDENTIALITY OF WORKPLACE
INVESTIGATIONS
• NLRB using Section 7 of the NLRA to evaluate work
rules.
• A work rule cannot reasonably tend to chill employees
in their exercise of Section 7 rights under the NLRA.
• Section 7 protects employees’ rights “to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.”
• Section 7 broadly protects employees’ right to
unionize, to strike, and to discuss terms and
conditions of employment.
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NLRB: Prohibiting Discussion of
Work Investigations Unlawful
• Banner Health System v. Navarro, 358 NLRB No. 93
(July 30, 2012)
• Held that prohibiting employees from discussing
ongoing investigations violates employees’ rights under
the NLRA to engage in concerted activity.
• Applies to union and non-union workplaces.
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Banner Health System v. Navarro
• Employee filed ULP with NLRB under Section 8(a)(1)
of the NLRA, which provides that it shall be an unfair
labor practice for an employer to interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7.
• Section 7 gives employees the right to engage in
“other concerted activities for the purpose of
collective bargaining, or other mutual aid or
protection.”
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ULTIMATE IMPACT OF NLRB RULING
• In order to minimize the impact on NLRA rights, the
employer must “first determine whether in any given
investigation witnesses needed protection, evidence was in
danger of being destroyed, testimony was in danger of
being fabricated, or there was a need to prevent a cover up.”
• Board found that Banner’s “blanket approach clearly failed
to meet those requirements.”
• As a result of Board’s ruling, a rule prohibiting employees
from discussing ongoing investigation of misconduct
violates the NLRA.
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TAKE-AWAY
An employer can prohibit employee discussion of on-going
investigations in situations in which it has a legitimate
business justification that outweighs an employee’s right
to communicate with coworkers. Routine or generalized
prohibitions will not outweigh employee rights. Rather, the
employer must be able to show that, as to a specific
investigation, the employer made a determination as to
whether any witnesses needed protection, evidence was in
danger of being destroyed, or testimony was in danger of
being fabricated.
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OSHA Inspections
Model Behaviors for the Inspection Process
• Know your rights and the company’s
limitations.
• Be an active participant and understand
the process.
• Do not be intimidated.
• Be firm, but polite.
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OSHA Inspections
Model Behaviors for the Inspection Process
• Know when to object to certain conduct don’t wait until it is too late.
• Know when you need help, and ask for it
immediately.
• Don’t be overly antagonistic or a pushover.
• Have a system in place for dealing with the
processes in advance.
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Recommendations
Playing ostrich and hoping to escape OSHA,
civil liability or insurance problems is a
losing strategy. Employers can manage
these risks by taking affirmative
steps toward compliance. The
result can be facilities that are safe,
more productive and more
profitable.
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Litigation filed by the EEOC
versus CVS Pharmacy, Inc.,
scrutinizing common settlement
and severance agreement terms
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EEOC Targets Release
Provision
EEOC v. CVS Pharmacy, Inc.,
Civil Docket No. 1:14-cv-00863, USDC, District of Illinois
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• The EEOC’s Complaint calls out the
following provisions of the separation
agreement:
– Cooperation clause providing that the employee
will contact the company if the employee receives
a subpoena or other inquiry relating to a legal
matter;
– A nondisparagement clause;
– A clause barring the disclosure of confidential
company information;
– A general release of claims; and
– A covenent not to sue.
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• Until this claim is tested through the
Federal court system, the best practice
recommendation is to include a
conspicuous disclaimer noting that the
employee is still able to bring claims to
the EEOC, even after signing a
separation agreement and release.
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QUESTIONS?
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