AMERICAN PUBLIC POWER ASSOCIATION The Ten Commandments of W k l Workplace IInvestigations ti ti Presented By R. Michael Lowenbaum The Lowenbaum Partnership, L.L.C. 222 South Central, Central Suite 901 St. Louis, Missouri 63105 (314) 746-4800 telephone (314) 746-4848 facsimile [email protected] Workplace Investigations • Conducting Legal and Effective Investigations to Significantly Reduce Your Liability Risks • Whether, Who, What, When, Where and Why and How to Investigate • Following the Ten Commandments of W k l Workplace IInvestigations ti ti • Tips for Documenting Investigations Overview • Why effective workplace investigations are important • How to plan and execute an investigation to avoid common pitfalls Vocabulary • Workplace investigations • Alleged harassment • Alleged All d di discrimination i i ti Why Investigate? • Identifying employer mistakes and how to correct them • Why prompt and effective investigations are critical Timing • The duty to investigate arises as soon as the employer or its become aware of possible discrimination discrimination, misconduct or harassment. • A complaint is not necessary. necessary • Employer may be held liable if it should h have kknown. Immediate and Appropriate • An employee notified her employer that a co-worker had talked to her about sexual activities and touched her in an offensive manner. Immediate and Appropriate • Within four days days, the employer: – Investigated the charges. – Reprimanded the guilty employee employee. – Placed him on probation. – Warned him that further misconduct would result in discharge. Immediate and Appropriate • A second coworker who had witnessed the harassment was disciplined for not intervening on the victim’s victim s behalf or reporting the conduct. • The court ruled the employer’s response was immediate i di t and d appropriate i t corrective ti action and found no liability. Whether to Investigate? • ALWAYS investigate investigate. Always Investigate. Investigate • An employer can defend itself from some claims of harassment by showing that: – The employer exercised reasonable care to prevent and promptly correct any harassing or di i i t discriminatory b behavior, h i and d – The employee unreasonably failed to take advantage of any preventive measure, remedies or corrective opportunities provided by the employer. First Responders • The duty y to investigate g arises as soon as the employer or its agents become aware of discrimination, misconduct or harassment. harassment – Employer must have strong policies and good avenues for reporting. – Employer must train managers to respond. Initial Response • The supervisor should respond to an employee’s concern by getting the basic facts without suggesting that he or she facts, believes or disbelieves the allegations. • The supervisor must not promise confidentiality. fid ti lit Always Means Always Always. • Don Don’tt “wait wait and see see.” • Investigate I ti t pastt acts. t • Investigate seemingly small matters. What If . . . ? • What if the accused admits to the behavior? • What if the victim doesn’t doesn t complain? • What if the victim asks the employer not to do anything? • What if the claim appears fabricated? Investigate. Investigate • Issues involved in the investigation investigation. Planning The Investigation • When should the investigation g begin? g • Who should investigate? • What to investigate? • Where to conduct the investigation? • How to conduct the investigation? When Must the Investigation Begin? • An employer must make every effort to begin an investigation as soon as possibly after becoming aware of the alleged wrongful conduct conduct. • Ideally begin in a day or two. Timing • Do not delay because you are waiting for a written complaint or your preferred investigator. investigator • Th The titimeframe f for f completing l ti the th investigation will depend on the nature of th iinvestigation-complexity, the ti ti l it llegall iissues and people involved. Beginning and Ending • The investigation begins with planning and interim actions. • The investigator should work diligently to complete l t the th iinvestigation. ti ti • The more quickly the investigation is completed, p , the less time for talk. How To Conduct the Investigation: Interim Actions • If an employee complains of harassment or discrimination, the employer must act immediately to ensure any type of discrimination is stopped. • Take interim actions to avoid reprisals or new allegations ll ti iinvolving l i th the same parties. Who Should Investigate? • Use an unbiased investigator. • The objectivity of the investigator is just as important as the promptness of the investigation. Preparation • Tour worksite. worksite • R Review i d documents-written t itt complaint, l i t personnel files of employees involved, policies li i or h handbooks. db k • Draft outline of interview questions and make list of initial interviewees. How to Investigate? Remain Neutral. • The investigator must remain neutral at all times and maintain the appearance of neutrality. • Independence must be established with both employer and complainant. Common Pitfalls • Appearing to have accepted the interviewee’s version. • Appearing to disbelieve the interviewee f from the th outset. t t • Making promises or appearing to make commitments. How to Investigate? Cause No Harm. • Avoid rumors about the charges or the investigation. • Keep statements to witnesses at a minimum. i i • Avoid “polluting” employees’ memories of what they y actuallyy know. Cause No Harm Harm. • Scripted opening and closing statements are helpful. – Explain neutrality neutrality. – Explain confidentiality. – Discuss no tolerance for retaliation retaliation. – Explain how to report perceived reprisal. – Review R i h harassmentt policy. li Cause No Harm: Confidentiality. • Interviewers should be specific and forceful when instructing interviewees about confidentiality. confidentiality • F Follow ll up iimmediately di t l with ith any interviewee you learn is feeding the rumor mill. ill Cause No Harm: Confidentiality. • Provide direction to all managers who have knowledge of the investigation regarding di iinvestigation. ti ti • M Make k sure person coordinating di ti appointments is neutral and discreet. – Provide a script to use when making appointments. How to Conduct the Investigation: Do Not Guarantee Anonymity or Confidentiality. • The company should never make guarantees it cannot be sure to honor. • The company cannot be sure it will not h have tto tell t ll th the accused d or th the accuser what a witness has said or what another employee l h has said id so th thatt a ffullll and d complete investigation can be done. How to Conduct the Investigation: Do Not Guarantee Anonymity or C fid ti lit Confidentiality. • Confidentiality is important important, but it cannot be guaranteed. • The investigator should tell employees who h are iinterviewed t i d th thatt confidentiality fid ti lit will ill be maintained to the greatest extent possible ibl without ith t iinterfering t f i with ith th the company’s investigation. Who to Interview: Interview All Potential Witnesses. • Determine who to interview and when. – Get a complete picture. – May need to follow-up with certain witnesses. Where to Interview: Interview All Potential Witnesses. • Select S l t iinterview t i llocation. ti – Should be neutral, private and well-lit. – The location should be outside the interviewee’s regular work area. How to Investigate: Report Back Frequently to Both Parties • Both parties should be kept reasonably informed of steps being taken to investigate and resolve the dispute dispute. • IInvestigator ti t remains i in i charge h off investigation and should not reveal specifics. ifi Conducting the Interviews • Schedule much more time than you expect it will take for each interview. • Schedule more time than you expect it will t k for take f the th entire ti investigation. i ti ti Interviewing Techniques • Use open open-ended ended questions. • Let the employee talk talk. • Don Don’tt interrupt. interrupt • Restate information to make sure you and the interviewee are in agreement about what has been discussed. discussed Interviewing Techniques • Try not to talk too much. • Use silence to your advantage. • Try to be non-adversarial non adversarial and not too formal. Interviewing Techniques • Empathetic and interested -- but neutral. • Review notes; Follow-up on questions. • Listen Listen. Interview Questions • The chronology can be the guide guide. • Begin B i with ith easy, b background k d questions. ti – Establish comfort, rapport. – Avoid witness becoming defensive. • Wait for difficult or embarrassing questions until the end of the interview. Interview Questions • You have to ask the tough questions questions. • Point P i t outt inconsistencies. i i t i • Don’t stop with your planned questions; p on what yyou learn. follow up Always Take Action. Action • No matter the results of the investigation investigation, take some action. • Allegations of harassment, or di i i ti discrimination, whether h th or nott th they prove true, should always be taken seriously. Always Take Action. Action • If y you determine no harassment or discrimination has occurred, use the situation to reeducate employees on how to be sensitive to other employees employees. • If you determine harassment harassment, discrimination, or unlawful retaliation has occurred,, take action that is appropriate pp p in relation to the wrongful acts of the accused employee. The Ten Commandments of Workplace Investigations. • • • • • Always investigate investigate. Separate affected employees. U an unbiased Use bi d iinvestigator. ti t Remain neutral. Cause no harm. The Ten Commandments of Workplace Investigations. • Don’t Don t guarantee anonymity or confidentiality. • Interview all potential witnesses witnesses. • Report back frequently to both parties. • Always take action. • Reeducate y your workforce. Remedial Action • The employer has an obligation – to provide a workplace free from harassment, discrimination and unlawful retaliation discrimination, retaliation, and – to take prompt and effective remedial action to correct harassing and discriminatory actions in the workplace. “Reasonable” Reasonable Standard. Standard • Did the employer take “reasonable” reasonable action after a “reasonable” investigation? • Are the employer’s actions reasonably related l t d tto the th results lt off the th investigation i ti ti and were they reasonably directed to ensure a workplace k l ffree off harassment h t and discrimination. Discipline • May range from a verbal warning to termination of employment. • Discipline imposed is adequate – Calculated to • R Remedy d th the presentt situation. it ti • Deter future harassment and protect the complainant co p a a from o retaliation. ea a o Discipline: Factors to Consider • • • • • Severity y of the conduct Pervasiveness of the conduct p y history y Harasser’s employment The Complainant’s employment history policy y or Notice that the harasser had of p unwelcomeness of conduct • Prior discipline for similar cases • Harasser’s reaction to the finding Disciplinary Remedies • Consider, alone, or in combination: – – – – – – – – Training Apology p gy Verbal or written warning Probation or suspension Demotion Transfer or reassignment Fi Fine Termination Notifying the Complainant • If there is a finding of a violation of policy policy, the employer must also notify the complainant that action has been taken taken. • Specific action probably should not be shared. Assurance of No Reprisal Reprisal. • If there is a finding g that no p policy y violation occurred, but the complaint was in good faith, employer should be informed. • Assure employer intends to protect all employees from harassment or reprisal reprisal. • Follow up with additional monitoring of parties. Summary • Employers have a duty to take corrective action to prevent, stop and protect against harassment and discrimination discrimination. • Prompt and effective investigations are an important component of that duty duty.