Conducting Effective Workplace Investigations: Legal Requirements and Practical Considerations Los Angeles Office

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Conducting Effective Workplace Investigations:
Legal Requirements and Practical Considerations
Presented: September 18, 2007
Los Angeles Office
10100 Santa Monica Blvd., Suite 700
(310) 552-5000
Los Angeles, CA 90067
www.klgates.com
EXCLUSIVE RIGHTS TO MATERIALS
THE FOLLOWING MATERIALS HAVE BEEN
PREPARED BY K&L GATES TO BE USED
EXCLUSIVELY BY PARTICIPANTS IN CONNECTION
WITH THE K&L GATES SEMINAR ON CONDUCTING
EFFECTIVE WORKPLACE INVESTIGATIONS.
THESE MATERIALS ARE NOT TO BE REPRODUCED,
COPIED, TRANSMITTED OR USED IN ANY MANNER
BY ANY OTHER PERSON OR ENTITY WITHOUT THE
EXPRESS WRITTEN CONSENT OF K&L GATES.
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Today’s Presenters:
Thomas Petrides
Jennifer Wayne
K&L Gates
Los Angeles Office
(310) 552-5077 (Direct)
(310) 552-5001 (Fax)
thomas.petrides@klgates.com
K&L Gates
Los Angeles Office
(310) 552-5084 (Direct)
(310) 552-5001 (Fax)
jennifer.wayne@klgates.com
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Topics to be Covered
ƒ Summary of legal issues and requirements
regarding the duty to conduct investigations
ƒ How to conduct effective workplace investigations
ƒ Common scenarios and mistakes to avoid
ƒ Questions and Answers
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EVENTS THAT TRIGGER THE NEED FOR AN
EMPLOYER INVESTIGATION
ƒ Employee complaints of harassment or
discrimination
ƒ Employee complaints of retaliation
ƒ Allegations of misconduct/wrong-doing/theft, etc.
ƒ Demand letters
ƒ Safety issues, accidents
ƒ SOX--Whistleblowing complaints or reported acts
ƒ Lawsuits or administrative claims
5
What Constitutes a Complaint?
ƒ Easy to recognize:
ƒ Written or verbal communication from employee specifically
complaining of harassment or other objectionable conduct
ƒ Employee verbally states he/she has been treated badly or
unfairly
ƒ Supervisor reports that inappropriate acts or misconduct have
occurred
ƒ Harder to recognize:
ƒ Statement in exit interview that the employee is “fed up” with
the “crap” he/she has had to put up with while working there
ƒ Offhand comment from employee directly to or overheard by
supervisor about inappropriate conduct that has occurred in
workplace, but no specific “complaint”
ƒ Employee mentions to supervisor that “Sally and Joe have
really been going at each other lately.”
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No Magic Words are Required
ƒ There are no buzz words the complainant must use
to qualify the statement as a complaint
ƒ Complaints need not come through “formal”
channels (such as through an established complaint
process or directly to HR)
ƒ Complaints need not be in writing
ƒ Often, mere knowledge of problematic facts or
events with no formal or specific complaint is
sufficient to require the employer to take the
initiative to investigate, or at least inquire further
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DUTY TO INVESTIGATE
ƒ Federal and state harassment/discrimination laws
impose legal duty on employer to investigate
employee-related complaints
ƒ Employer has no discretion to decide not to investigate,
regardless of feelings of reluctant complainants/witnesses
ƒ Fact that employee is “chronic complainer” or a malcontent
does not absolve Employer of duty to investigate
ƒ Tougher question when conduct occurs off premises/off
duty or at social function
ƒ If conduct has implications at the workplace, investigation
may be appropriate or necessary
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Duty To Investigate (Cont.)
ƒ Federal and state safety laws impose duty on
employer to investigate accidents, safety violations
ƒ Various whistleblower laws impose duty on
companies to investigation allegations of wrong-doing
or misconduct
ƒ Provisions in written employment agreement may
impose contractual duty to investigate “good cause” to
terminate
ƒ Obligations to shareholders may impose duty to
investigate claims to determine or limit potential
liability
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Failure To Investigate Promptly And Fairly
ƒ May be used as a basis to show that company failed
to prevent harassment/discrimination from occurring
or condoned/ratified unlawful conduct
ƒ May be used by aggrieved employee as an
independent cause of action if the underlying
harassment/discrimination actually occurred
ƒ Trujillo v. N. County Transit Dist., 63 Cal. App. 4th 280 (1998)
ƒ May create an inference of malice, which could be
the basis to award punitive damages
ƒ Bowles v. Osmose Utility Services, 443 F. 3d. 671 (8th Cir.
2006) at p. 675
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Prompt and Effective Investigation
ƒ Under Title VII of the Civil Rights Act of 1964 (EEOC),
the investigation can be used by the Employer to limit
or avoid liability with respect to claims for hostile work
environment harassment when the complainant has
suffered no adverse employment action
ƒ Burlington Industries v. Ellerth, 524 U.S. 742 (1998)
ƒ Faragher v. City of Boca Ration, 524 U.S. 775 (1998)
ƒ Under FEHA, the Employer is still liable for
harassment by a supervisor, but it can rely on a valid
investigation to limit the damages that can be
recovered
ƒ State Dept. Health Services v. Sup. Ct. (McGinnis), 31 Cal.4th
1026 (2003)
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Investigations as Defenses to Other Claims
ƒ If employment is not “at-will,” investigation can serve
as basis to establish “good faith belief” by employer
that employee had engaged in misconduct to justify
termination, even if later proved that employer was
wrong
ƒ Cotran v. Rollins Hudig Hall, Inc., 17 Cal.4th 93 (1998)
ƒ Proper investigation may establish that Employer “had
an honest, good faith belief” that employee violated
Company policy to defeat claim of alleged
discrimination
ƒ King v. United Parcel Service, _Cal.App.4th_ (May 2007)
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Civil Complaints -- Focus on the Investigation
ƒ Recent trend by plaintiff’s attorneys
ƒ Alleged acts of harassment/discrimination may be
fairly minor, but focus of the lawsuit becomes the
employer’s failure to fully or properly investigate
ƒ “Employee complained but Company did nothing”
ƒ If Employer did not promptly investigate, or failed to
properly document, or reached questionable
conclusion, these facts are exploited in litigation and
make Company “look bad,” even if underlying claim
of harassment/discrimination is weak
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Best Practice
ƒ Regardless of whether there is a specific law
imposing a duty to investigate, it is good practice to
investigate when issues or facts arise that might be
problematic
ƒ Properly investigating can help the company identify
and prevent a problem from becoming a bigger
liability
ƒ Proper investigation and appropriate and prompt
remedial action can cut off damages and
sometimes eliminate liability altogether
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Importance of Conducting a Proper and
Thorough Investigation
ƒ May be legally required
ƒ Will help establish that Company acted reasonably
and objectively
ƒ May yield admissions from wrong-doer
ƒ Should establish extent of conduct being
complained of by employee to limit later “expansion”
ƒ Will enable Company to take appropriate corrective
action
ƒ Should help limit claims and potential liability
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ELEMENTS OF AN APPROPRIATE INVESTIGATION
ƒ Conducted by impartial investigator
ƒ Designed to ensure all appropriate witnesses are
interviewed and all relevant facts are uncovered
ƒ Is prompt and thorough
ƒ Must be well documented
ƒ Enables the company to draw reasonable conclusions
ƒ Confidentiality is properly protected to extent possible
ƒ Results and conclusions communicated to victim and
alleged harasser
ƒ Action taken that is effective to end inappropriate
conduct and deter future similar conduct
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Determining Who Should Investigate
ƒ Key considerations:
ƒ Job titles/positions of employees involved in the
conduct or other wrong-doing
ƒ Type of conduct involved
ƒ Potential liability to Company
ƒ Existence or likelihood of litigation or enforcement
actions
ƒ Well-trained in the skills that are required for
interviewing witnesses and assessing credibility
(See, e.g., EEOC 1999 Enforcement Guidance §
V(C) (1) (e))
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Determining Who Should Investigate (cont.)
ƒ Investigator may be later called as a witness
ƒ Concerns about maintaining attorney-client privilege
ƒ Credibility issues with Company personnel who may
be perceived as biased
ƒ Investigator’s likely effectiveness as an interviewer
in light of the positions, personalities, and
backgrounds of the people to be interviewed
ƒ Investigator’s prior, existing, or expected future
relationship to the Company or to individuals to be
interviewed
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Examples of Appropriate Investigators
ƒ In-house human resources professionals
ƒ May not be appropriate where executive-level
employees are involved
ƒ May not be appropriate if friends with or in reporting
relationship with those involved in the conduct
ƒ In-house counsel
ƒ May wish to preserve attorney-client privilege by
limiting involvement in actual investigation
ƒ May not be appropriate where executives or other
direct reports are involved
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Examples of Appropriate Investigators (Cont.)
ƒ Company security department personnel
ƒ Outside counsel
ƒ Outside counsel becomes “investigator” and attorneyclient privilege will be lost or greatly limited
ƒ Outside counsel will be a “witness” in lawsuit such that
firm may be disqualified from representing Company
ƒ Use of company’s regular outside counsel may render
investigation biased or provide the appearance of bias
ƒ Outside qualified HR consultant or investigator
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Planning the Investigation
ƒ Identify and review applicable policies, rules and documents;
become familiar with the issue(s) to be investigated
ƒ Determine which witnesses should be interviewed and in
what order
ƒ All witnesses identified by the complainant and the alleged
harasser should be interviewed; follow up as needed and as
new witnesses are identified in course of the investigation
ƒ Prepare an investigation checklist
ƒ List of individuals to be interviewed
ƒ Items/points to be addressed with each witness
ƒ [Optional] Prepare/review Confidentiality Acknowledgement
to be signed by witnesses (other than complainant)
ƒ [Optional] Request and review personnel files of
complainant, alleged wrong-doer(s), and possibly key
witnesses
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Conducting the Investigation
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Interview the complainant
Interview the alleged wrong-doer
Interview other witnesses
Document your investigation
Reach conclusion and prepare investigation report
Take appropriate corrective action
Communicate results to complainant and wrongdoer
ƒ Follow up afterwards as necessary
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What to Communicate to all Interviewees
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Brief nature of the investigation
[Company’s legal obligation to conduct investigation]
Brief summary of the investigation process
Confidential nature and requirement that employee
acknowledge confidentiality during investigation
ƒ Prohibition against retaliation
ƒ Right to complain and/or participate in investigation
ƒ Employee’s legal duty and obligation to cooperate
ƒ Requesting facts, not subjective opinions
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Basic Rules for Interviewing
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Prepare an outline of questions to ask
Seek facts; ask open-ended questions
Do not ask questions that suggest a particular answer
Maintain neutrality and professional tone
Remain open minded; do not argue or express
opinion, or suggest foregone conclusion
ƒ Ask for supporting evidence (photos, emails, notes,
calendar entries, etc.)
ƒ Follow up on answers and inquire further where facts
do not “gel” or are confusing – ask “Anything else?”
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Basic Rules for Interviewing (Cont.)
ƒ Conduct interviews in appropriate private office
ƒ Certain circumstances may require off-site location
ƒ Best to have two people present for Company during
interviews
ƒ One should be primary questioner and other primary
note taker
ƒ Interview one employee at a time – not in a group
ƒ If Union workforce, be aware of “Weingarten” rights
ƒ Employee has right to Union Rep if questioning could
lead to discipline of that employee
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Interviewing the Complainant
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Be sensitive (but objective/neutral) to issues being raised
Identify the alleged harasser(s) or wrong-doers
Details of each incident of misconduct and dates/time frame
Existence of witnesses or other knowledgeable persons
If there was a delay in reporting, reasons for the delay and any
efforts the employee used to avoid/stop the offending conduct
ƒ Ask whether employee ever complained to anyone else before
ƒ Inquire about the effect of the alleged harassment or
misconduct on the complainant
ƒ Remedy sought by the complainant
ƒ Explain the process; confirm you must disclose to alleged
wrong-doer the identity of the complainant
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Document the Interview
ƒ Take detailed notes of the complainant’s statements.
ƒ May want to ask the complainant to provide a written
statement of the facts and details of the complaint, list
of witnesses and other relevant info, etc., but do not
use this as a substitute for an interactive interview
ƒ Read your notes back to the Complainant and seek
confirmation that they are accurate
ƒ or prepare typed summary/notes and ask Complainant
to review and sign them to verify that they are accurate
ƒ Make sure that you record only the facts of complaint;
not speculation or “spin,” or your opinion or subjective
comments, regarding the complainant’s statement
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Document the Interview (Cont.)
ƒ Assess credibility of the employee – on separate
document may want to record your thoughts,
impressions, and objective observations and beliefs
based on the interview (separate from the factual
statement of the complaint from the employee)
ƒ Date all documents and notes
ƒ Place your name on all documents/notes you prepare
ƒ Keep written record of when you receive from or
provide documents to the employee
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Interim Measures
ƒ After speaking with and assessing complainant’s issues,
demeanor, and likely dynamics, assess and implement
short-term resolution during investigation.
ƒ Paid leave for employee? Paid/unpaid suspension for
wrong-doer?
ƒ Separate job location? Possible temp. transfer (for whom)?
ƒ Work from home?
Caution: Taking interim measures towards complainant may
be perceived as retaliation. However, immediate action
may be required to prevent further harassment from
occurring. Consult legal counsel for options and it may be
necessary to discuss options with complainant before
determining most appropriate interim measures.
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Interviewing the Alleged Wrong-Doer
ƒ Briefly disclose nature of investigation and identity
of complainant
ƒ Do not provide specific facts or details yet
ƒ Explain the investigation process
ƒ Explain confidentiality issues
ƒ Emphasize prohibition against retaliation and
consequences of violating confidentiality
requirements during the investigation processes
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Interviewing the Alleged Wrong-Doer (cont.)
ƒ Do not anticipate the outcome of the investigation or
provide projections of likely outcome
ƒ Do not engage in argument with employee
ƒ Do not encourage speculation about the outcome or
merits of the complaint
ƒ Remind the employee that the purpose of an
investigation is to uncover facts
ƒ Ask the employee broad, open-ended questions first;
follow with more detailed/specific questions based on
responses and drill down to the core facts
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Interviewing the Alleged Wrong-Doer (cont.)
ƒ Ask the employee if he/she believes there is any
other reason the employee may have made the
complaint against him/her
ƒ What is relationship between the victim and the
alleged wrong-doer?
ƒ Ask for any mitigating circumstances or
explanations
ƒ Ask for any witnesses or other knowledgeable
persons
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Interviewing the Alleged Wrong-Doer (cont.)
ƒ As with complainant, verify the accuracy of notes
taken during the interview with the alleged wrongdoer
ƒ Ensure notes record facts, not interviewer’s
opinions or conclusions about credibility
ƒ Confirm alleged wrong-doer does not have any
other useful facts or information that may shed light
on complaint or assist in its resolution
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Interviewing Witnesses
ƒ Inform the witness that the purpose of the interview
is to obtain the witness’s knowledge of the incident
ƒ Confirm witness’s obligation to cooperate
ƒ Press upon the witness the importance of
truthfulness and confidentiality
ƒ Persons interviewed should be assured that the
information they provide, including their identity, will
be shared only with those who have a need to know
(including the complainant and alleged wrong-doer)
ƒ Reaffirm that any form of retaliation is prohibited
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Interviewing Witnesses (cont.)
ƒ Begin with open-ended questions
ƒ Transition to the specific situation at issue
ƒ Give witness an opportunity to provide any
additional information
ƒ Probe witness with follow-up questions, and ask
about knowledge of any relationships between
complainant and alleged wrong-doer or possible
motivations for complaint or conduct at issue
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Interviewing Witnesses (cont.)
ƒ Inquire if the witness is hostile/friendly to either the
complainant or the alleged wrong-doer
ƒ Ask witness if he/she is aware of any others who
might have relevant information or evidence
ƒ Ask witness for additional information and evidence
(photos, emails, calendar entries, and other
evidence)
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Interviewing Witnesses (cont.)
ƒ Prepare formal witness statements or take notes, as
close to verbatim as possible, of the facts recounted
to the investigation and provide witness with written
statement of his/her interview to verify its accuracy
and make any necessary changes
ƒ Witness should sign and date the statement
ƒ If this is not possible or practical, confirm accuracy of
notes and obtain initials
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Risk Factor
ƒ Failure to interview relevant witnesses may lead to
the conclusion that the investigation was unfair
ƒ Taybron v. City & County of San Francisco, 341 F. 3d
957 (9th Cir. 2003)
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Expected and Unexpected Issues
ƒ The recalcitrant complainant, wrong-doer, or witness
ƒ Remind them of obligation to cooperate (in some instances,
remind them of potential for discipline for failure to cooperate)
ƒ Assure them of obligations of confidentiality/non-retaliation
ƒ Confirm that company can take action based only on the
information it is able to obtain during the investigation; if
information is withheld, the company cannot consider it
ƒ Refusal by complainant to cooperate may cause company to
doubt credibility of the complaint, question motives
ƒ Refusal by alleged wrong-doer to cooperate may lead to
inference that he/she engaged in wrong-doing
ƒ Interviewer’s notes should confirm refusal to cooperate and
that disclosures were made to confirm consequences of
refusal to cooperate
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Expected and Unexpected Issues (cont.)
ƒ Complainant refuses to submit to interview without
presence of counsel
ƒ Confirm to employee that counsel may become a
witness and cannot interfere with investigation
ƒ Refusal to permit presence of counsel could affect
reasonableness of investigation
ƒ In the end – better to allow attorney present than to refuse
ƒ Reconsider who should conduct interview if counsel
will be present
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Self-Check on Fairness/Thoroughness of
Investigation?
ƒ Did you try to get both sides?
ƒ Did you check documentation for
confirmation/consistency?
ƒ Did you interview all witnesses with relevant
information?
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Next Steps in Investigation
ƒ Review information gathered and determine if
follow-up interviews are necessary with
complainant, alleged wrong-doer, and/or any
witnesses
ƒ Ensure documentation is complete, understandable
ƒ Ensure you are clear on the facts
ƒ Consult legal counsel as necessary regarding legal
obligations and requirements
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The Investigation Report
ƒ Should be prepared by the interviewer
ƒ Should summarize the facts
ƒ Should include statements concerning interviewer’s
assessment of credibility of each person
interviewed, if such an assessment is possible, and
must include a basis for each such assessment
ƒ Stick to observable or objective indicia
ƒ If based on demeanor, describe the demeanor in
detail
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Meeting to Analyze Report to Come to
Conclusions
ƒ Meeting limited to those who need to be involved
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HR Director
In-house counsel
Appropriate executive(s)
Outside counsel
ƒ Interviewer should be brought in to present report,
but not involved in making final employment
decision
ƒ Attorney-client privilege issues
ƒ Keeps outcome separate from investigator
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The Conclusions and Action to be Taken
ƒ Conclusions drawn based on facts and information from
report, with appropriate advice and guidance of counsel,
as appropriate
ƒ Memo should be prepared to complainant reporting the
conclusions (e.g., company could/could not conclude
that unlawful harassment occurred) and confirming
what, if any, action will be taken
ƒ Memo should confirm prohibition against retaliation and
encourage immediate reporting of retaliation
ƒ Memo should remind employee of open-door policy or
other process if employee is dissatisfied with results and
action taken
ƒ Under California law, complainant must be informed of
conclusions reached and action to be taken
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The Conclusions and Action to be Taken (cont.)
ƒ Memo should be prepared to alleged wrong-doer
relating the conclusion of the investigation and any
action, if any, to be taken
ƒ Memo should remind employee of prohibition against
harassment and consequences of violation
ƒ Memo should remind employee of open-door policy or
other process available if employee is dissatisfied with
results or action taken
ƒ If termination is appropriate action, meeting should include
HR and at least one other witness, include final paycheck,
and avoid argument over conclusions or merit of complaint
(instead inform employee that he/she should put concerns
in writing and send it to company and it will respond
appropriately)
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If Harassment Occurred:
ƒ Employer MUST remedy any situation of
discrimination/harassment
ƒ Remedies may include the following actions against
the harasser:
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Termination
Discipline (suspension w/out pay, written warning, etc.)
Training
Counseling
Transfer, demotion, loss of promotion, loss of bonus,
reduction in pay, etc.
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If Harassment Occurred (cont.)
ƒ Remedies for the victim can include:
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Offering paid leave
Offering company-paid counseling
Offering transfer (be cautious)
If employee confirms he/she wishes to leave,
negotiate severance package (with general release)
ƒ Paying for any costs incurred (such as for counseling,
medical costs, loss of benefits, loss of any pay for
absences caused by harassment, etc.)
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Importance of Investigation
ƒ As long as employer conducted reasonable, fair,
thorough, and prompt investigation, and reached
reasonable conclusions based on that investigation,
employer may avoid liability to employee for
harassment/discrimination or for failure to conduct
appropriate investigation
ƒ Exception: Strict liability where harasser was
supervising agent under CA law
ƒ Practical consideration: Can be used to limit
damages, but may be expensive to litigate and prove
this defense
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Maintaining Documentation
ƒ Keep all investigative materials, including interview
notes, witness statements, correspondence, and
documents gathered in the course of the
investigation, in a separate file—not in personnel
file
ƒ All investigation documents should be marked as
such
ƒ Keep all investigation materials confidential
ƒ Limit access to the investigation materials
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Discovery of the Investigation File
ƒ The investigation record, which includes notes of
the interviews, will be discoverable
ƒ Interviews by counsel (in-house or outside) or by
HR professionals or other investigators with various
witnesses are discoverable
ƒ Witnesses having a conversation with the in-house
counsel where the in-house counsel is conducting
the investigation is not privileged and is
discoverable
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Discovery of the Investigation File (cont.)
ƒ Internal e-mails, sent between various
managers/supervisors and HR professionals, even
if in-house counsel is included in the list, may not be
privileged – use of emails should be limited
ƒ Attorney interview notes may not be privileged,
even if they contain deductions, analysis,
determination of credibility if they are inextricably
intertwined with the investigation record or disclosed
to those without a clear need to know
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Common Mistakes and How to Avoid Them
ƒ Taking the side of one of the parties involved in the
investigation
ƒ Common mistake (and easy to understand why this
may occur), but it is important for investigator to
remain neutral and conduct an unbiased, objective
investigation
ƒ Applies equally whether empathizing with
complaining employee or defending conduct of
alleged wrong-doer
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Common Mistakes and How to Avoid Them (Cont.)
ƒ Promising complete confidentiality to parties or
witnesses involved in the investigation
ƒ Must be sure to explain that confidentiality is
qualified/limited
ƒ While every effort will be made to conduct a discreet
investigation and disclose information only on a
“need to know” basis, nature of investigation will
require facts disclosed to come out to various people
as necessary
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Common Mistakes and How to Avoid Them (Cont.)
ƒ Failing to properly document the investigation
ƒ Many times, “minor” complaints or issues are not fully
or properly documented
ƒ While it may not be necessary to document to the
same full extent as a more serious complaint, it is still
very important to at least properly document the
investigation to avoid potential claims later on
ƒ Also, be sure that all relevant documents are properly
dated and can later be identified with respect to who
gave the witness statement and who prepared it
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Common Mistakes and How to Avoid Them (Cont.)
ƒ Do not become a “lazy” investigator
ƒ Do not simply ask the witnesses, complainant, or
alleged wrong-doer to provide you with a written
account of what happened
ƒ Important to have interactive interviews to assess
credibility and immediately follow-up on issues raised
ƒ Prevents employees from improperly inserting their
own subjective opinions and potentially biased beliefs
into the process
ƒ Otherwise, may not be viewed as a fair, thorough,
and objective investigation
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Common Mistakes and How to Avoid Them (Cont.)
ƒ Failing to come to a conclusion
ƒ In the “he said – she said” type of case, easy to simply
state that no conclusion can be reached
ƒ However, important to reach a conclusion based on the
best information available, credibility of the witnesses,
a determination of who is more likely to be telling the
truth, etc.
ƒ OK to determine “inappropriate conduct” without
concluding “unlawful sexual harassment” occurred
ƒ But, California law on harassment requires some
conclusion to be reached, and failure to do so could
lead to later liability
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Common Mistakes and How to Avoid Them (Cont.)
ƒ Failing to talk to accused prior to reaching conclusion
ƒ Not uncommon for Employer to reach conclusion based
on strong facts against employee that employee “did it”
and purpose of meeting is to impose discipline rather
than investigating or questioning employee
ƒ No matter how implausible an explanation might be,
should still meet with the employee to get his/her “side of
the story” prior to imposing discipline
ƒ Employee may “admit guilt” or give false statements
during interview that can then be used as further basis to
terminate or discipline employee
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Questions
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