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Addressing Post-Election Tensions in the Workplace
December 12, 2016
Presented By
Alison N. Davis
Kevin M. Kraham
Office Managing Shareholder Littler Washington, DC 202.772.2533 andavis@littler.com
Shareholder Littler Washington, DC 202.423.2404 kkraham@littler.com
© Littler Presentation | 2016 Proprietary and Confidential
• Political speech • Best practices • Workplace policies and investigations
Agenda
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Workplace Tension
Political Speech
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Does the First Amendment protect employees who express their political views in the workplace?
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May an employer require its employees to support the employer’s political views?
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May an employer prohibit political campaigning at work?
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May employers prohibit political displays at work?
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May employers restrict employees’ off-duty political activities?
© Littler Presentation | 2016 Proprietary and Confidential
Complaint Employee complains that her co-worker constantly says Bernie Sanders should’ve never been a candidate because he’s Jewish. Another co-worker tells colleagues at lunch he thinks Sanders should not have run because he’s too old.
What actions should the employer take?
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Complaint An employee who’s a devout Christian displays a Bible on her desk, and strongly urges co-workers to support pro-life candidates.
What actions should the employer take?
Best Practices
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• Revisit relevant policies in handbook – Solicitation – Electronic communications – Discrimination – Retaliation
• Meet and discuss with management team • Meet and discuss with entire team • Encourage employees to report concerns
Best Practices
Workplace Policies and Investigations
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• What has changed? • What are the dangers? • What are the opportunities?
Investigations Under the Microscope
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Investigations Gone Bad
20
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Prompt Thorough
Investigations: The Balance
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• How many of you have an investigations protocol? • How many of you have written guidelines?
Investigations Protocol
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© Littler Presentation | 2016 Proprietary and Confidential
Key Elements of Investigations Guidelines
• Defined roles and responsibilities • Standardized approach with clear procedures • Documentation • Notifications • Case management system • Risk mitigation • Metrics • Reporting • Avoiding mistakes in investigations protocol
© Littler Presentation | 2016 Proprietary and Confidential
© Littler Presentation | 2016 Proprietary and Confidential
Types of Adverse Employment Action
Terminations, Layoffs
Invitations to meetings
Assignments, Training
Transfers
Discipline, Demotions
Promotions
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• Should the investigation be directed by counsel (either in-house or outside)? – This needs to be decided up front
• If it is privileged: all documents should be marked “Privileged and Confidential” and shared only with counsel
• Conversations about the progress of the investigation and/or next steps should be in the presence of, or at the direction of, counsel to maintain privilege
• Written documents should be maintained with the likely prospect that the privilege will ultimately be waived as to the investigation ─ LEARN GOOD HABITS IN REPORT WRITING
Attorney-Client Privilege Issues
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• Does your company conduct training for HR on how to conduct effective and lawful investigations?
• Who should be trained and how often? • What is the most effective way
to train investigators?
Training
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• Impartial fact-finder (no biases) • Good listener and follow up • Gather and collect evidence - do a deep dive and go
beyond the workplace when needed and appropriate • Attention to detail • Protect the record • Properly document investigation • Fairness and respect • Take off your HR hat • Take out the emotion • Avoid prejudging the situation and keep an open mind
Best Practice Tips for Training an Investigator
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• Everyone deserves it – We are advocates for the entire
organization – management and employees. Not “us vs. them”
– So, no walks of shame, security escorts, “misconduct” tags (unless appropriate)
• Disrespect becomes part of every charge or lawsuit – adds fuel to the fire
Treating Employees with R-E-S-P-E-C-T
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• Filler comments, full of significance – “He shouldn’t have spoken to me like that” – “I told my manager, but she didn’t seem to care”
• Apologies can reduce tension early on • Convey respect back to them
– “I hear/understand what you’re saying” – “Is there anything else you think would be important for me to know?” – “Is there anything we can do to support you?” – “Thank you for your time/candor/feedback”
During Investigations: Listen for opportunities to be respectful
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•
Report Writing
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• Legal conclusions • Keeping or not keeping notes • Written recommendations • Throwing out reports • Not filing reports • Personal opinions and excited utterances
(notes in margins) • No conclusions, just facts • Timeliness of reporting
Common Mistakes - Report Writing
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Steps in Planning
Identify The
Allegations
Laws and Policies
The Specific Issues
Select The Means
Interviews
Documents
Other
Then...
Conducting the Interview
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• Have a script - instructions to witnesses • Confidentiality • Retaliation is not allowed • Data privacy rights • Upjohn protocol • Garrity • What else?
Have Standard Interview Instructions
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• Instructions to witnesses • Funneling • Active listening • Take off HR hat • Question, don’t interrogate • Know your documents • Plan the interview –
don’t wing it • Ask the hard questions
Best Practices Tip for Effective Interviews
© Littler Presentation | 2016 Proprietary and Confidential
• Funneling • Active listening • Closing the door • Assessing credibility
Effective Interview Technique
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Funnel Approach (The Pyramid)
Open Phase
Clarification Phase
Pinning Down Phase
(i.e., closing the door)
© Littler Presentation | 2016 Proprietary and Confidential
• Now get clarification for details – Follow-Up – Exhaust – Fill in
Clarification Phase
Open Phase
Clarification Phase
Pinning Down Phase (i.e. closing the door)
© Littler Presentation | 2016 Proprietary and Confidential
• Close the door • Get the final answer
– Anyone else present? – Anyone else know about the details
• Listen to the witness • Exhaust the subject • Recap and ask, “Is there anything else?”
Closing Off
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• Listen to the witness • Don’t be wedded to your outline • Hearing is different than listening • Don’t miss obvious or subtle cues • Take accurate notes • Power of silence
Active Listening
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• EE refuses to participate • Recording the interview • Bringing a friend • Bringing an attorney • Raising new claims • Threatening the investigator • Interview takes longer • Other unexpected things
Anticipating the Unexpected
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Confidentiality: The Balance
Confidentiality Fair Opportunity
To Respond
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• How do you make a decision? • Verify and analyze • Making credibility determinations • Remember: making the decision • Documentation
Reaching a Conclusion/Documenting
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• Background • Other Background • Nature of Investigation • Allegations • Response • Witness Information • Findings • Reasoning • Recommended Final Steps
Follow the Report-Writing Map
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• Not following up • Not taking appropriate remedial measures
Common Mistakes—Remediation
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• NOT following your policies • NOT holding employees accountable • NOT following up with witnesses as appropriate • NOT following up with complainant
and keeping them informed of status
Common Mistakes—Final Steps
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• Mistakes in the first 72 hours can cause an investigation to fail
• Evidence can be lost; poor documentation can send you down the wrong track
The First 72 Hours
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• Carefully parse through different strands so you don’t get sidetracked
• Don’t overlook issues that may be important and may need to be revisited or investigated separately
Missing the Forest for the Trees
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• Don’t leave the complainant hanging or he or she will assume you’re doing nothing
• Provide updates • Communicate that you’re
actively investigating without sharing details
Communicate Back
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• Inexperienced investigators or others in the organization can inadvertently destroy, corrupt or fail to adequately secure critical evidence
• Can even create new bad evidence
Evidence
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• Investigators may have to assess credibility where evidence or accounts conflict.
• Be careful to suspend your preconceptions.
Accepting at Face Value
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• Retaliation against whistleblowers or witnesses exposes you to additional legal risk
• Erodes culture of compliance • Discourages internal reporting
Retaliation
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• Be alert to the need to protect the rights, privacy and reputations of investigation subjects and others, balanced with the need to conduct an effective investigation.
Employee Rights
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• The investigation report should never contain legal conclusions
• Remediation decisions will be based on findings of fact, not conclusions of law
• Not judges or juries
Drawing Legal Conclusions
Questions
Thank You!
This information provided by Littler is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and the current status of any decision or principle of law should be verified by counsel.
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