Tag Archives | workplace investigation

Selecting a workplace investigator: the appearance of independence can be as important as the independence itself

Employers know that when allegations of wrongdoing in the workplace arise (e.g., harassment, discrimination), they have a legal obligation to conduct an investigation.  Such an investigation is also necessary in the world of potential corporate wrongdoing, as the New York Times reported yesterday in an article about G.M.’s recent commission of an investigation into why the company failed to alert outsiders to a design defect responsible for accidents and deaths.  (See the article here).  The article questions G.M.’s decision to use its regular outside counsel to conduct the investigation.  CEO Mary Barra called upon law firms King & Spaulding and Jenner & Block to conduct an “unvarnished” investigation.  Both firms have represented G.M. in, among other things, product liability cases.  So they once (and perhaps will again) defended G.M. in litigation for the same or similar issues they are now charged with investigating.  Does this suggest a conflict of interest?

As the Times points out, law firms have become increasingly sophisticated in handling internal investigations.  For example, they could set up so-called “Chinese walls” between the individual attorneys who represented the company in litigation and those acting as independent investigators.  However, the perception of a conflict of interest is enough to render me wary.  Will the law firm who gets a significant portion of its revenue from G.M. really be willing to follow the facts wherever they lead, even if doing so could harm G.M.?  Some might be willing to; others would not.  Be the fact that the question even has to be asked suggests a conflict of interest: perceived, actual, or perhaps both.

The selection of the investigator is a critical first step in any kind of internal investigation.  My advice to employers is to select someone who is, and appears to be, completely independent.

mary barra

 

(Photo credit Reuters)

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A workplace investigation guarantees a boost to your defense, right?

Not necessarily.  It depends on how good the investigation is.  Take the recent case of Castelluccio v. IBM, decided last month by a Connecticut federal court.  An employee who had just been separated complained of discrimination.  IBM’s internal HR representative conducted an investigation and found no evidence of discrimination.  In the subsequent lawsuit, the employee tried to keep the investigation out of evidence before the jury.  The court granted his request, finding fault with the investigation, thus mitigating its “probative value.”

What was wrong with the investigation?  The court criticized the fact that it was conducted internally, deeming it “one-sided.”  The employer would have done better to retain a neutral, outside investigator.  The court also took issue with the fact that once the employee signed a severance agreement, the investigation ceased.  This was further evidence that the investigation was really not intended to get to the bottom of the discrimination allegation.

Takeaways: consider using outside investigators where appropriate.  And make sure all workplace investigations are really intended to ascertain what happened – not merely to foreclose litigation.

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Need another reason to investigate internal complaints? Avoiding retaliation claims.

Earlier this month the Eleventh Circuit decided a case that highlights the importance of conducting prompt investigations when an employee complains of harassment.  In Kurtts v. CSG, receptionist Crystal Kurtts received a flood of “sext” messages from her supervisor, including a request that they have sex in the office after hours and a suggestion that she would receive a better schedule in exchange for “small favors.”  She complained to the corporate office and expressed her extreme discomfort in having to continue to work with the supervisor.  The employer stated the supervisor would remain at work but assured Kurtts it would investigate.  Then, before commencing any kind of investigation, the employer called her back and asked if she just wanted to leave the company’s employ and be sent her final paycheck.  Kurtts said yes.  She then sued, big time.

The most interesting of Kurtts’s claims is retaliation.  The basis?  The employer’s failure to investigate and concurrent suggestion that she take her last paycheck.  The Eleventh Circuit agreed, reversing the grant of summary judgment (meaning a jury trial will be happening soon).

One thing employers should be acutely aware of is retaliation claims are very persuasive to juries.  The employer in this case should be pretty darn nervous.  What can you take away from this?  If someone complains about harassment, take it seriously.  And investigate.  And take interim action if appropriate (such as placing the accused party on a paid leave pending the results of the investigation).  Capiche?

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The intensity of a workplace investigation

I recently wrapped up a pretty intense workplace investigation.  Intense in terms of time, emotions of witnesses, and the potential stakes involved.  As the investigator, I worked hard to stay focused and neutral.  To be the proverbial tree standing still despite the circling winds.  It’s not always easy, especially when those darn empathetic impulses kick in, but it’s part of the job.  A really important part of the job.

Whether you are conducting an investigation internally or looking for an outside resource, make sure your investigator is experienced in this forced detachment.  Many HR professionals enter the field because they are “people people,” so this may not come naturally.  I know I’ve had to work on it.  While experience is the best teacher, these skills can be learned through comprehensive training, too.  If you’re in need  of some good training in this area, call me.

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Seventh Circuit refuses to expand anti-retaliation protection to employees who merely “participate” in a workplace investigation

In the recent case of Hatmaker v. Memorial Medical Center, the Seventh Circuit held that an employee’s participation in an internal investigation was not protected activity under Title VII.  The statute’s retaliation provision protects employees from retaliation when they oppose unlawful activity (under the provision’s “opposition” clause) or when they participate in Title VII proceedings (under the “participation” clause).  

The plaintiff in Hatmaker complained about her supervisor’ ability to work with women.  Accordingly, the employer launched an internal investigation.  During the course of the investigation, the plaintiff made disparaging remarks about her supervisor, calling him a “good ole boy” and, as such, inherently sexist.  She also compared his workplace conduct to Don Imus in the Rutgers basketball debacle (where Mr. Imus referred to the members of the women’s team as “nappy headed hos”).  The investigation did not substantiate the allegations and concluded there was no hostile work environment (though the plaintiff never used this term).  Subsequently, the plaintiff was suspended for thirty days to give her a chance to put her negative feelings about her supervisor behind her.  Since she did not, she was eventually fired.  She then sued under Title VII, alleging she had been retaliated against for participating in an investigation.

The Seventh Circuit noted that while the plaintiff “participated” in an investigation, the investigation was “purely internal.”  It held that Title VII’s reach extends only to formal investigations, such as those initiated with the EEOC.  In addition, the court found that the plaintiff was not terminated for her participation, per se, but for comments she made which, in her employer’s estimation, displayed poor judgment.  The court went on explain that a complainant who engages in misconduct — such as lying during the course of the investigation or even filing a baseless charge — is not immune from disciplinary action under Title VII.

The decision stands in contrast to the 2009 Supreme Court case of Crawford v. Metro. Gov’t of Nashville & Davidson County, Tenn., which upheld the retaliation claim of an employee who participated in an employer’s internal investigation into a co-worker’s claim of sexual harassment.  (See our earlier post about the case).  The Crawford plaintiff shared her own experiences of harassment at the hands of the accused, and was subsequently terminated.  The high Court held that under the opposition clause of Title VII’s retaliation provision, the plaintiff was protected.

I am not quite sure how to reconcile Crawford with Hatmaker.  While the Crawford plaintiff relied on the opposition clause, the Court’s holding involves the fact that she participated in an investigation.  Moreover, while the Hatmaker plaintiff primarily relied on the participation clause, she did invoke the opposition clause too, to no avail.  Reading the decision, it seems that the Seventh Circuit really disliked the plaintiff’s statements about her supervisor and found her conduct in complaining reprehensible.

So what’ the moral of the story for employers?  In the Seventh Circuit, at least, participating in an internal investigation does not render an employee bulletproof.  I still urge caution in meting out discipline to employees who complain or who participate in internal investigations, as retaliation claims have a way of coming back to bite employers.  The Crawford  plaintiff, as just one example, won a jury verdict of 1.5 million dollars when she eventually got to trial following her Supreme Court battle.  If in doubt, consult with counsel.  Despite the employer’s victory in Hatmaker, this area is still a legal minefield.

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Getting a sense of a corporation’s culture: the job of every investigator (or, ruminations during a 7 hour layover in Dallas)

As I sit in the Dallas/Fort Worth airport for the fifth straight hour (just two and a half more to go before I board a plane for home), I find myself thinking about the corporate culture I have been immersed in for the past couple of days.  It’s a unique one, to be sure, and to do my job as an impartial, third-party investigator well, one that I need to be familiar with.  

“Corporate culture” is a frequently heard buzzword.  While it may sound vague and fuzzy, it actually carries a lot of substance.  Some questions that will help discern a particular culture: is a particular place of employment full of “lifers,” employees who have been with the company for decades?  How hierarchical is it?  Does leadership interact with the factory floor (or its equivalent)?  How do people address each other?  Are birthdays and other milestones acknowledged?  Who cares, you may wonder?  Here is why I do.  To assess allegations of managerial wrongdoing in a comprehensive and meaningful way, an investigator should consider the context.  I don’t mean that sexist behavior should be tolerated in, say, a trucking environment.  I’m referring to a more subtle kind of context.

An investigator should get to know the culture well enough to see what’s not being said, in addition to what is.  This takes a lot of practice, a little bit of skill, and the ability to step into the shoes of various witnesses.  So that is what I set out to do, each and every time I begin a new investigation.     

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Thorough investigation saves employer’s day in court (again)

Late last month, the Third Circuit Court of Appeals upheld the dismissal of Deborah Wood’s discrimination, hostile work environment, and retaliation claims.  Wood was a systems analyst at the University of Pittsburgh who was laid off, along with sixteen other employees, due to a decrease in funding.  She promptly sued the University, alleging (among other things) that its response to her internal complaints had been inadequate.  The court took the opposite view, however, characterizing the University’s response “extraordinary.”

A couple of years prior to her discharge, Wood complained that someone was tampering with her computer.  The University launched three separate investigations into the matter.  First the supervisor investigated the allegations, with the help of the computer department.  Then, when Wood elevated the complaint to HR, HR instigated a separate investigation.  Still not satisfied, Wood sought the assistance of the campus police, as she believed someone had broken into her office.  Again, an investigation was immediately commenced.  None of the investigations were able to substantiate Wood’s claims.

While it is certainly not essential for employers to conduct repeat investigations is the complainant is unsatisfied with the initial results, this case aptly demonstrates that courts look favorably upon employers who take action when confronted with employee complaints.  Make sure you know where to turn when an internal complaint arises (hint: Warren & Hays).

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Workplace investigations: to document or not to document

In a word, yes.  But, unless you have a seasoned investigator who knows how to prepare investigation-related documentation as if she were preparing “Exhibit A” for a trial (because she very well may be), no documentation is better than bad documentation.  So assuming you have a good investigator and plan on asking her to prepare an investigation report, what should the report contain?  Obviously, the report should contain a detailed explanation of all steps taken during the investigation, witnesses interviewed, documents reviewed, etc.  It should also describe, in fairly thorough detail, factual conclusions and how they were reached.  But — and this is really important — investigation reports should never contain legal opinions or conclusions.  Why?  The role of the investigator is to make findings of fact.  The lawyers can determine the legal impact of those facts, at the appropriate time.  This is true even if the investigator is a lawyer.  

Consider a harassment investigation, for example.  The investigator finds that the complainant’s allegations are substantiated.  The conclusion, then, should be couched in terms of the employer’s policy.  Thus, “the harassment policy was violated,” rather than “the accused committed harassment.”  With the former conclusion, the employer can still successfully defend a subsequent harassment claim by arguing the conduct did not rise to the level of illegal harassment.  Such an argument will be much harder to make with the latter conclusion.  In the end, it all comes down to having a skilled investigator (and having policies and trainings that will allow the employer to defend itself in the event of litigation).

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Bad investigation supports punitive damages claim

The Sixth Circuit recently upheld a jury award of over a million dollars to a plaintiff who had been employed for a mere five weeks.  In West v. Tyson Foods, Inc., the plaintiff claimed she was sexually harassed by a number of male co-workers.  Per her employer’s policy, she complained to her immediate supervisor.  The supervisor’s initial response was that she should not take offense, as “that’s just how they treat their women over there.”  He further assured he she was “hot.”  He then told her he would look into the matter and specifically asked her not to go to HR.  The only thing he did was to “observe” the situation for a few days.

After the plaintiff was followed to her car one night, she decided not to return to work and was terminated for job-abandonment.  She then had an exit interview with an HR manager, and she disclosed the harassment.  The manager promised to investigate, but did nothing.  Tyson finally conducted an investigation after the plaintiff filed an EEOC charge.

The investigator did not interview one of the named harassers, a co-worker to whom the plaintiff had complained to at the time of the alleged harassment, or the manager who conducted the exit interview.  The investigator simply sent the witness statements to Tyson’s EEO specialist who, in turn, did nothing except respond to the EEOC charge.

A jury awarded the plaintiff $1.2 million, including punitive damages, and the Sixth Circuit upheld the award.  Tyson’s response to the plaintiff’s internal complaint was “woefully insufficient,” according to the court.  No action was taken to stop the harassment; the investigation was conducted too late and was incomplete, at best, and; no disciplinary measures were ever imposed on the perpetrators.

On appeal, Tyson argued the trial court erred in admitting evidence of the investigation at all, as it was conducted post-termination.  But the Sixth Circuit disagreed, finding the details of the investigation were relevant to show Tyson’s “reckless disregard” of the plaintiff’s Title VII rights, thereby supporting the punitive damages award.

This case is a textbook example of how not to respond to an internal complaint of harassment.  It’s also a good reminder that having an anti-harassment policy is not enough.  Supervisors must be trained on how to deal with harassment situations that arise.

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So the investigation is over. Now what?

Suppose you have successfully responded to a workplace complaint by conducting a prompt and thorough investigation and reaching findings of fact (or, better still, you outsourced the investigation to Warren & Hays).  The investigation found an employee violated the company policy prohibiting harassment or discrimination.  What is your next course of action?  A notation in the personnel file?  Yes, that’s most likely necessary, but not always sufficient.  One-on-one “sensitivity” training can be an excellent resource.

It sounds good, but what is it, exactly?  The offending party meets with an experienced third-party trainer.  During the course of the meeting, the trainer reviews the company policy, provides a detailed overview of the legal landscape and how the offender’s actions fit into it, instills the fear of God in the offender (by raising the specter of such terrors as personal liability), and coaches the offender on how to best avoid similar situations in the future.  The coaching portion of the session can provide the most helpful long-term gains, both for the employee and the employer.  Murky areas such as management style, workplace communications, unconscious bias, and increased sensitivity are explored in an interactive way.  The result is often a better informed, more aware supervisor who is eager to hone her new-found skills.  

I often hear from the skeptical client, “but can people really change?”  It is true that deeply-held biases and ingrained attitudes can be hard to shift.  But it is just a true that behavior in the workplace can be altered by training, coaching and, yes, scaring offending employees.

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Sometimes it pays to hire an outside investigator

investigatorHow do you know when a workplace investigation needs an outside investigator? While we’d love to say “always,” many investigations can be handled internally by competent HR personnel or in-house counsel. There are, however, red-flags that indicate when an outside investigator is necessary:

  • The government is involved (EEOC, SEC, DOL)
  • There is a chance of a lawsuit or government investigation
  • More then one employee complains about the same serious problem (e.g. systemic racism)
  • The accused is a high-ranking employee
  • The complaint is subject to media attention
  • The complaining employee has hired a lawyer, filed a suit or a charge with a government agency (EEOC, OSHA, Wage and Hour Division)
  • The accusations are extreme (allegations of rape, assault, threats, theft)
  • There is a heightened need for objectivity and impartiality

In these situations, the benefits of an outside investigator are many: knowing how to prepare a report that will likely be evidence or a defense in litigation or a government investigation, less interruption to business, more effective interviews, and the perception that the company is taking the complaint seriously.  

When choosing an outside investigator, ask for credentials, references, whether he/she has served as a witness, and examples of prior investigations and the results.

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