Proactive Employment Practices
The Association of Workplace Investigators (AWI) is the leading national organization dedicated to enhancing the quality of workplace investigations. I’ll be kicking off the Cleveland Circle tomorrow. The group will serve as a resource for professionals involved in workplace investigations. It’s going to be a lot of fun. Want to know more? Shoot me an email.
When an employee complains about harassment, discrimination, or another workplace policy violation, one of the most important decisions you need to make is WHO will investigate the complaint. This initial question can make all the difference if the investigation is later subject to scrutiny, in a court or otherwise. So how should you make this selection? Here are my top four DON’Ts:
1. Don’t choose someone who has a working or personal relationship with the complainant or the accused wrongdoer.
2. Don’t choose someone with no experience or training in workplace investigations. This is a specialized area requiring a high level of skill.
3. Don’t choose someone who lacks communication skills, both verbal and written. Your investigator should be able to converse effectively with the parties, witnesses, and perhaps even to serve as a witness him or herself
4. Don’t choose someone the parties won’t trust. It is critical that the investigator is viewed as a “neutral.”
Action step: make a checklist for yourself so that when the time comes to select an investigator, you are ready to go. Remember, time is of the essence when it comes to responding to employee complaints!
When an employer receives an internal complaint of discrimination or harassment, it has a legal duty to investigate. Sometimes, the employer needs to take action pre-investigation, to keep the complaining party safe (aka interim action). Consider the case of Al-Birekdar v. Chrysler Group, decided by the Eighth Circuit earlier this month. The plaintiff complained about religious and racial harassment. What did the employer do? Place him on an indefinite leave of absence.
Are you scratching your head? I hope so! This is a clear “Don’t” in the world of workplace investigations. The decision to separate the parties was a good one. Why keep an alleged harasser and an alleged harass working together? However, this decision should never be implemented to the complainant’s detriment.
What should the employer have done? One obvious option would have been to place the alleged wrongdoer on a paid leave of absence pending the investigation. Why paid, you ask? Because the alleged wrongdoer has rights too, and you don’t yet know if he or she violated any of your policies. So hedge your bets, think paid leave, and make sure the complaining party is not out a dime.
Not surprisingly, the court upheld the jury’s almost $200,000 retaliation verdict.
When an employee complains about workplace discrimination, harassment, or any potentially illegal employment practice, the employer must conduct an investigation. (But you already knew that, yes?) One of the first questions the employer must answer is: who will conduct the investigation? It surprises me how many employers make the mistake of having their lawyer (in-house or from their outside law firm) investigate. This is a very bad idea. Conducting a prompt and thorough investigation can be the key part of the employer’s defense if the complainant later sues (a not unlikely scenario). But if the employer’s lawyer conducted the investigation, what happens when the plaintiff wants access to everything the lawyer said, did or wrote with respect to the investigation? Privilege waived is what, if the employer intends to rely on the investigation in any way as part of its defense.
The attorney-client privilege is a tremendously important tool for employers. They can craft their defense, deal with potentially harmful facts, and strategize around any weaknesses in their case, without fear of having to disclose such communications. But once it’s waived — an inevitable result of having your lawyer don two hats, investigator and legal counsel — all bets are off.
If you think this is merely a hypothetical scenario, think again. The recent case of EEOC et al. v. Spitzer Management is the perfect case study. In-house counsel investigated complaints made by a number of plaintiffs into claims of racial and national origin-based harassment. It then tried to protect some of counsel’s records from disclosure in the ensuing litigation. Not so fast, held the court: “By asserting a defense of adequate investigation, Spitzer has waived privileges for documents that constitute evidence of the investigation of the claims for discrimination.”
So do yourself a favor. If you need to investigate an internal complaint, do not use your lawyer. Think about an independent investigator who wears only one hat: that of independent investigator. (Yours truly, for example).
I’ll have more to say about this case in the upcoming days and weeks. I had the opportunity to sit down with counsel for one of the plaintiffs recently, and the case contains a lot of lessons for us HR types.
Last year I blogged about the Banner Estrella case, where the NLRB held that workplace investigators may not uniformly ask witnesses to maintain confidentiality, arguing such requests could interfere with “protected concerted activity.” (See here for the post). It was big bad news to those of us in the world of workplace investigations, as the NLRB challenged a best practice. We investigators typically ask witnesses for confidentiality as a matter of course in order to protect the integrity of the investigation. The NLRB’s decision left us scratching our heads and rethinking our strategies. Well, the NLRB has done it again.
In American Baptist Homes of the West d/b/a Piedmont Gardens, the Board examined a union request following the termination of an employee caught sleeping on the job. The union wanted to see all witness statements collected during its investigation into the alleged misconduct. The employer objected to the request, relying on prior Board precedent. The NLRB overruled its prior bright line rule protecting witness statements and instead adopted a balancing test. Under this standard, if the information requested is relevant (an easy standard to meet), the party opposing production based on confidentiality must prove “that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.”
Piedmont Gardens is a pro-union decision that impacts workplace investigations in a union setting. If confronted with a union request for witness statements following an investigation, play it safe and consult with counsel.
Have you been concerned about the NLRB’s recent decision in Banner Estrella Medical Center, where the Board held an investigator’s routine and typical admonition that the complainant keep the ongoing investigation confidential violated the NLRA? If so (and anyone who does workplace investigations should be nodding their head), you’re in luck. My good friend and colleague Allison West is presenting a free webinar on October 18 from 2-3 EST.
Allison is a tremendous source of knowledge and a fantastic speaker. To take advantage of her insights, register here. Did I mention it’s free?
Between a family vacation and a number of investigations I took a couple week hiatus from blogging. But I’m back, and there’s a lot going on in the HR world. One hot topic I’ve read a lot about recently concerns a relatively standard practice in workplace investigations: telling participants not to discuss the ongoing investigation with others. I typically ask witnesses to keep our conversation to themselves. Why? It protects the integrity of the investigation. It (ideally) prevents the rumor mill from getting out of hand. It increases the likelihood that when I speak to witnesses for the first time I am getting unrehearsed, non-orchestrated answers to my questions.
Some employers have policies telling employees that they are not to discuss ongoing workplace investigations, and that doing so could result in disciplinary action. Others simply request confidentiality of witnesses as a matter of practice. In the world of workplace investigations, though, confidentiality is considered a “best practice” and a standard one, at that. But, the NLRB recently took the position that simply requesting witnesses not to discuss the investigation interfered with “protected concerted activity” under the NLRA. (The case is Banner Estrella Medical Center, and you can read a great analysis of it from Jon Hyman of the Ohio Employer’s Law Blog here). Adding insult to injury, the EEOC recently joined the bandwagon by asserting an employer’s policy telling investigation participants not to discuss the ongoing investigation violates Title VII (allegedly by interfering with “protected opposition”).
Neither of these positions make any sense. Workplace investigations are one of the key tools employers have to address and redress harassment and discrimination in the workplace. These agency attempts to allegedly protect employee rights serve no valid purpose. Rather, they will simply undermine the integrity of workplace investigations.
The story is not over yet. For now, I think employers should hold on to their hats, stand by their policies and/or practices concerning confidentiality in investigations, and wait to see how this whole debacle shakes out.
In McDole v. City of Saginaw the Sixth Circuit upheld a million dollar jury verdict in favor of an employee who sued after he was fired. Former police officer McDole was terminated following a workplace investigation, which concluded he physically assaulted and threatened a suspect. McDole’s lawsuit alleged he was terminated based on his race. The trial court refused to instruct the jury on the “honest belief” rule, namely that if an employer honestly and in good faith believes the employee engaged in misconduct, it will not later be liable to the employee if its belief turns out to be wrong. This is a very important doctrine in the world of workplace investigations. It basically gives employers a get-out-of-jail-free card if they conduct an investigation properly and thoroughly but nonetheless reach the wrong conclusion. The City appealed the jury verdict on the grounds that the failure to instruct on this was prejudicial error. The Sixth Circuit denied the appeal and upheld the verdict. It concluded the jury’s decision finding discrimination basically rejected the notion that the City honestly believed its reason for termination.
What does this mean for employers? Workplace investigations just got a little trickier to navigate. The Sixth Circuit effectively weakened the “honest belief” rule, making it more important than ever that workplace investigations be done expertly. Consider bringing in an outside investigator with expertise in the area, or training those employees who conduct workplace investigations.
I’ve been thinking about workplace investigations a lot this week. Probably because I’m in the middle of one and also working on some new training on best practices in conducting investigations. We’re all familiar with the adage “perception is reality,” the idea being that if things look a certain way to someone, even if they’re wrong, their view is entitled to some deference, or at least recognition. But in the world of workplace investigations, the investigator needs to take a more objective look.
Consider this hypothetical. An employee alleging some kind of unfair treatment recalls a meeting in which her supervisor swore at her. She recalls the exchange with much emotion, and unless she’s the next Meryl Streep, it seems pretty clear she fully believes her account. Her supervisor, however, tells an equally persuasive but contradictory story. She explains, and witnesses confirm, that the alleged profanity is simply not in her vocabulary. Must the investigator conclude someone is lying? Not necessarily.
When emotions run high in the workplace, and they usually do by the time a workplace investigation is underway, recollections can reflect an individual’s general perception. It is entirely possible that in the above scenario, the complainant truly believes her supervisor swore at her, even if no such thing occurred. The trick for the investigator is not to get bogged down in everyone’s varying perceptions, and instead to try to discern the “truth.” This can be a tricky proposition, to be sure. But experienced investigators can do a pretty good job in sifting through the facts.
Regardless of the investigation’s outcome, there is good news for employers. Even if the investigator makes a mistake (i.e., reaches the wrong factual conclusion), the employer will be protected from liability so long as the investigation conducted was fair, reasonable and thorough.
The 2009 Supreme Court’s decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee made a big splash in the world of employment law. The Court expanded the reaches of Title VII’s anti-retaliation provision, holding an employee who participates in an internal investigation of a harassment complaint is protected from retaliation, even if that employee made no complaint of her own. (For an excellent analysis of the case, see Jon Hyman’s post about it at the Ohio Employer’s Law Blog). The plaintiff in the case was essentially thrown a lifeline by the Court and allowed to return to the trial court.
Last month, a jury returned a verdict in her favor. She was awarded 1.5 million dollars. The case’s outcome serves as a reminder that retaliation claims tend to fare very well when they get before a jury. Employers should make sure their supervisors understand their legal obligations in this respect. Not doing so can be a very expensive misstep.
In Monday’s Ohio Employer’s Law Blog, Jon Hyman discussed the recent Sixth Circuit case of Weimer v. Honda of Amer., where the court upheld the jury’s verdict in favor of the employer. The issue was whether the employer’s termination of the plaintiff violated his rights under the Family Medical Leave Act (FMLA). Honda discharged Weimer based on the results of an investigation it conducted to determine whether Weimer’s stated need for FMLA leave was honest, or whether he had lied to get some time off. At trial, the plaintiff presented some evidence that his need for leave had been, in fact, real. No matter, said the court. The issue for the determining liability was whether the employer honestly and reasonably believed that the plaintiff had lied, which would be grounds for termination. Whether or not they were right, in other words, was not determinative.
Mr. Hyman wisely points out that the “takeaway for employers from the Weimer case is to make sure that all reasons in support of a termination are documented.” In addition, an employer who finds itself having to make a termination decision based on disputed facts should conduct a thorough investigation. An investigation worth its salt should include (documented) interviews with all relevant individuals and a review of all relevant documents.
Sometimes, an investigation can be conducted quickly and thoroughly in-house. When emotions run high (as they often do in termination decisions), however, it can be a good idea to bring in an outside resource. Not only to make sure the investigation is conducted properly, but also to take some heat off the employer for the results.
By way of example, Warren & Hays recently conducted an investigation that substantiated some of the alleged wrongdoing. The alleged wrongdoer ended up furious with us — the neutral, third party investigators — but not with the employer. Thus, the employer came out looking like the “good guy” even though it disciplined the employee in question. This made the transition back to business-as-usual mode at work far smoother than it would have been without our involvement.
So keep us in mind not just to conduct thorough and defensible investigations, but also to enhance your employee relations by making you look good!
On October 15, many of us tuned in for a while as a helium balloon floated over the Colorado sky, allegedly with a six-year old boy in it. The media was all over this story as it unfolded, flitting from one working theory to another. He’s in the balloon! He was never in the balloon! He must have fallen out! He was home the whole time!
As we all know by know, the boy (unfortunately dubbed forevermore as “Balloon Boy”) was hiding in the attic during the entire episode. While the media buzz (as well as local law enforcement) has turned to the issue of whether the entire episode was a misguided hoax aimed at increasing the family’s publicity, I find myself wondering what we can learn from this.
It is a natural human tendency to want to know how things are going to turn out, and to want to know now, now, now. And, this yearning for instant gratification is amplified with today’s technology. After all, information on almost anything is available to us 24/7 with little more than a click of the mouse.
When it comes to workplace investigations (or children allegedly floating away in helium balloons), however, patience can be a virtue. When an employee has complained about harassment, discrimination or other alleged misconduct, it is natural to want to get to the bottom of the complaint asap. Maybe we have an imaginary scenario already running through our heads of who is telling the truth in the he said/she said saga. But unless we take the time to gather all the facts and conduct a thorough, impartial, and objective investigation, we may be left in the end holding a bag of theories that do not necessarily reflect the reality. Trained outside investigators (like Warren & Hays) can be the best solution.
This Wednesday, July 29th, Sindy and I will be presenting separately at the Cleveland HR Star Conference on Dealing with Problem Employees and The Golden Rules of Workplace Investigations. The agenda for the Conference contains the following descriptions of our programs:
Dealing with Problem Employees
Sindy Warren, Esq.
Partner, Warren & Hays LLC
Every organization has them – employees who are not productive, who chronically complain, who engage in bullying behavior, or who are otherwise “problem employees.” Their effect on the entire workplace is all too well-known. They leave managers frazzled and frustrated. They intimidate others. They stimulate the proverbial grapevine, and they generally distract from the business at hand. This session will help you identify the various types of problem employees and – more importantly – it will provide you with practical advice for how to deal with them effectively. By attending, participants will gain the knowledge necessary to legally and successfully minimize the ill-effects of problem employees. Topics covered will include: avoidance through pertinent hiring practices, managing performance, applying disciplinary measures, terminating when necessary, and avoiding any legal landmines that might arise.
The Golden Rules of Workplace Investigations
Jennifer Hays Gorman, Esq.
Partner, Warren & Hays LLC
It is critical that employers respond promptly and thoroughly to employee complaints of harassment, discrimination and other unlawful workplace conduct. This session will take an in-depth look at what “prompt” and “thorough” really means as well as what the courts are now expecting. Attendees will walk away with a blueprint for effective and successful investigations, including tips on how to get the most from every witness and how to create bulletproof documentation. Additionally, this session will address:
• When the duty to investigate is triggered.
• How to define the scope and strategy of an investigation.
• The advantages and detriments of using investigators.
• The role of confidentiality, including privilege and work product issues.
• Appropriate interim measures.
• Keeping proper documentation.
Now more than ever courts and juries are scrutinizing workplace investigations, and they expect to see certain t’s crossed and i’s dotted. Even when litigation does result, the investigation still can be an employer’s best defense. Find out how an effective and well-executed investigation will help resolve workplace conflicts and minimize litigation risks by attending this incisive session.
For information on how to register for the Conference, visit the HR Star Conference site at: www.hrstarconference.com/register.html
Knowing when and how to conduct an investigation can be an employer’s most important tool in avoiding and minimizing work-related claims. Not only are employers legally required to investigate claims of discrimination and harassment, investigations are often mandatory under company policies and, importantly, critical to employee relations, i.e. creating and maintaining the perception of a fair and equitable workplace.
In the past few months, we have conducted several substantial investigations for clients involving: harassment/bullying by a top-level employee, sexual harassment, employee theft, and ethical misconduct. While the subject matter is always unique, the same guiding principles apply to all investigations:
1. Know When to Investigate – employers must investigate all claims or incidents of harassment, discrimination and violations of law or company policy, even in the absence of a formal complaint.
2. Determine the Scope and Extent of the Investigation – establish who will be interviewed and what documents are relevant (capture electronic data).
3. Choose the Right Investigator – impartiality and lack of bias are critical. If there is a possibility that the claim will go to court, choose an experienced investigator who will make a good witness.
4. Investigate Promptly – start the investigation as soon as possible and notify employees of any necessary delays.
5. Take Immediate Interim Action If Necessary- place employee on leave, temporarily change lines of reporting.
6. Investigate Thoroughly – interview all witnesses, review relevant documents, follow up if warranted.
7. Document the Investigation – keep objective, fact-based notes of witness inteviews. The written report should contain an accurate, unbiased recitation of facts and conclusions. Recommendations can be included, if they will be followed.
8. Follow up and Follow Through – take appropriate disciplinary action, notify regulatory or law enforcement agencies if required, prevent retaliation, and bring closure.
Conducting a prompt and thorough investigation can prevent claims from going to court, establish a solid defense and bolster an employer’s credibility.
We should be connected!!!
