Workplace Investigations: How the Employer Should Do Them and How the Plaintiff Can React to Them...

Workplace Investigations:How the Employer Should Do Them and

How the Plaintiff Can React to Them

Jennifer M. Trulock

University of Houston Law FoundationAdvanced Employment Law

June 2007

Picking Your Investigative Team Investigators to Use

The right "investigative temperament"

Call "central casting"

Lawyers--Maybe, but think through the evidentiary and privilege issues

Investigators NOT to use

The accused

Employees with vested interests in outcome

Employees lacking restraint

Employees with the wrong personality

Former law enforcement personnel

HR representatives--some

Train Investigators to Develop the 5 Major Types of Evidence

Direct Evidence

Circumstantial Evidence

Anecdotal Evidence

Statistical Evidence

Comparative Evidence

Things to Do Before the Investigation Begins

Suspend the Employer's Record Retention Policy as to any Possibly Relevant Documents/Information

Collect, Preserve and Examine All Computer Resources

Computer Network Removable disks and CDs PCMCIA Cards Personal Digital Assistants Temporary Files (including Internet files) Swap Files Thumb drives, external hard drives Metadata Audit trails, computer logos and access lists Cache files, browser and cookie histories Tape back-ups

Promptly Invoke the Attorney-Client Privilege Anticipate and Address "Potential Conflict" Issue

Clarify Whom the Investigating Lawyer Represents

Reminders To Employee Witnesses:

No Retaliation

No Promise

Identify and Isolate All Potentially Applicable Policies

Anticipate "Ex Parte" Communications

General Considerations for All Investigations

Investigate Complaints Promptly and Thoroughly Questions to Ask in Harassment Cases

Were the sexual advances welcomed? What is the complainant's attitude? What is the complainant's emotional character? What do we know about the accused? Is the complaint late?

Special Considerations Relative to Union Settings

Johnnie's Poultry Statement

Weingarten rights

Privacy Concerns Raised by Organizational Investigation Techniques

Drug Testing Polygraph Testing Workplace Searches Custodial Interrogations

Privacy Concerns Raised by Organizational Investigation Techniques

Surveillance, monitoring, eavesdropping, wiretapping

Hidden cameras

Monitoring of computer operations

Privacy Concerns Raised by Organizational Investigation Techniques

"Informers," "spies," or "plants"

Lawyer participation in deception by undercover investigators

Privacy Concerns Raised by Organizational Investigation Techniques

Fair Credit Reporting Act Issues

Five Management Rules of Thumb(and One Suggestion)

1. Discourage Electronic Mail Communications

Informality of electronic mail results in imprecise/incomplete inquiry and (possibly) bad advice

Confidentiality of electronic communications may not be assured

2. “No Good Deed Goes Unpunished”

3. “Trust Everyone . . .But Cut the Cards”

4. “Treat Like Cases Alike; Treat Different Cases Differently”

5. “Assume Everything is ‘On the Record’”

One Suggestion:

When In Doubt, Call Your Lawyer.

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