Addressing Post-Election Tensions in the Workplaceshared.littler.com/tikit/Emerge_Docs/2016/WEB_Post_Election_Tensi… · 2016-12-12 · Presented By . Alison N. Davis . Kevin M

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 [email protected]

Shareholder Littler Washington, DC 202.423.2404 [email protected]

© Littler Presentation | 2016 Proprietary and Confidential

• Political speech • Best practices • Workplace policies and investigations

Agenda


Workplace Tension

Political Speech


Does the First Amendment protect employees who express their political views in the workplace?


May an employer require its employees to support the employer’s political views?


May an employer prohibit political campaigning at work?


May employers prohibit political displays at work?


May employers restrict employees’ off-duty political activities?


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?


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


• 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


• What has changed? • What are the dangers? • What are the opportunities?

Investigations Under the Microscope


Investigations Gone Bad

20


Prompt Thorough

Investigations: The Balance


• How many of you have an investigations protocol? • How many of you have written guidelines?

Investigations Protocol



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



Types of Adverse Employment Action

Terminations, Layoffs

Invitations to meetings

Assignments, Training

Transfers

Discipline, Demotions

Promotions


• 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


• 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


• 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


• 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


• 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


•

Report Writing


• 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


Steps in Planning

Identify The

Allegations

Laws and Policies

The Specific Issues

Select The Means

Interviews

Documents

Other

Then...

Conducting the Interview


• Have a script - instructions to witnesses • Confidentiality • Retaliation is not allowed • Data privacy rights • Upjohn protocol • Garrity • What else?

Have Standard Interview Instructions


• 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


• Funneling • Active listening • Closing the door • Assessing credibility

Effective Interview Technique


Funnel Approach (The Pyramid)

Open Phase

Clarification Phase

Pinning Down Phase

(i.e., closing the door)


• Now get clarification for details – Follow-Up – Exhaust – Fill in

Clarification Phase

Open Phase

Clarification Phase

Pinning Down Phase (i.e. closing the door)


• 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


• 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


• 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


Confidentiality: The Balance

Confidentiality Fair Opportunity

To Respond


• How do you make a decision? • Verify and analyze • Making credibility determinations • Remember: making the decision • Documentation

Reaching a Conclusion/Documenting


• Background • Other Background • Nature of Investigation • Allegations • Response • Witness Information • Findings • Reasoning • Recommended Final Steps

Follow the Report-Writing Map


• Not following up • Not taking appropriate remedial measures

Common Mistakes—Remediation


• 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


• 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


• 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


• 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


• 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


• Investigators may have to assess credibility where evidence or accounts conflict.

• Be careful to suspend your preconceptions.

Accepting at Face Value


• Retaliation against whistleblowers or witnesses exposes you to additional legal risk

• Erodes culture of compliance • Discourages internal reporting

Retaliation


• 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


• 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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