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Conducting Investigations
Ginger D. Schroder, Esq.Schroder, Joseph &
Associates, LLP
Discussion Topics• Standards for investigation
• Establish importance of effective investigation skills
• Skills necessary for conducting an effective internal investigation
• When to investigate
• Who should investigate
• How should the investigation be conducted-special issues
• How should the evidence be evaluated
• Determining what corrective action to take
Standards of Proof• “Beyond a reasonable doubt”• Clear and convincing evidence• Preponderance of the evidence• Good faith investigation /
reasonable conclusion• Issue of investigation supporting a
decision that must be held to a higher standard
Common Standard Most of the arbitrated cases involving
discipline/discharge (69.68 percent), .... Applied a “preponderance of the evidence” proof standard
In cases involving quasi-criminal or criminal conduct or stigmatizing behavior, many arbitrators apply a higher standard of proof, typically “clear and convincing.”
Investigation Standards EEO Investigations
Focus on alleged victim & work environment
EEOC guidelines Union Situations
Focus on violation of published house rules
“Just Cause” test Contract Employees
Focus is on breach of contract
Bound by contract procedures
All Others Focus on legitimate,
non-discriminatory reason
Procedures at employer’s discretion
“Fairness” seems to be standard
Exceptions for certain statutes (USERRA, UI, COBRA)
Wrongful behavior
Identify the Purpose of the Investigation
Why is the investigation necessary?- Internal formal complaint or grievance- Anonymous complaint- EEOC, DOL, OSHA, NYSHRD, notice - “This isn’t a complaint” complaint- Changes in conduct, behavior, productivity,
attitude- Losses - Misconduct- Other?
Identify the Purpose of the Investigation (cont.) What is the investigation intended
to accomplish?- Uncover and stop employee misconduct- Establish record for decisionmaking- Reveal weaknesses in employer policies,
procedures, processes- Prevent charge-filing or litigation- Avoid negative publicity- Limit liability for organization and managers
Preparing for the Investigation
It is critical that the any necessary investigation be prompt and effective!
Time is often of the essence EEO cases require immediate investigation Union and individual contracts generally have
time frames Long lag times will affect your credibility
When To Investigate When you knew or should have known
that possible misconduct has occurred “Formal” complaint is not necessary No such thing as “off the record” or
“confidential” as supervisor/manager knowledge is imputed to employer
Is a Formal Investigation Necessary?
• Employee initiates issue• Determine:
• Employee misunderstands the organization’s policy
• There is a lack of communication between employee and another (supervisor)
• No other facts are needed to resolve the issue
• No other outside resources are necessary to resolve the issue
• Issue is susceptible to informal resolution
• Therefore, no internal investigation is necessary
Is a Formal Investigation Necessary?
• Employee initiates issue• You determine:
• You need additional facts
• Employee cannot supply you with facts
• You need to speak to others
• You need the assistance or input from those with special expertise
• Therefore, you initiate an internal investigation
SELECT INVESTIGATOR
Instilling Confidence in the System and You---Identify bias and concerns about bias and remedy same to the extent feasible
“To tell you the truth, I don’t feel that you are the right person to handle this issue. Only _____________ can understand the kind of discrimination minorities in this organization face every day of the week.”
Select the Appropriate Investigator
Criteria for selection:- Reputation for honesty, credibility and
confidentiality- Unbiased- General knowledge of legal issues- Training or experience in conducting
investigations- Ability to serve as Company witness, if necessary- Attorney-Client privilege?
Who Should Investigate
Supervisors/Managers/Senior Administration Fine for day-to-day infractions, union &
contract situations Need to be trained on procedure &
standards Human Resources Managers
Preferable for EEO investigations Need to receive specialized training
When You May Want Counsel To Investigate If allegations involve high-level
official and organization needs to ensure that the investigation is above reproach;
If allegations are extremely serious;
If litigation is anticipated.
Outside Investigators Outside Investigators
Limit to special situations Conflict situations Highly sensitive situations
As noted prior, you may use attorneys internal or otherwise
They will not be able to defend the employer in any subsequent litigation
Need someone with qualifications and experience in the field
Will be held responsible if mistakes are made They should be good witnesses (credible,
knowledgeable, organized, thorough)
Prepare a Strategy
- Prepare timeline for investigation- Consider order of investigative actions- Consider order of witnesses
- Do you need to speak to other witnesses before the accused?
- Should one employee be interviewed before another to avoid possible influencing of testimony?
- Can you compel the accused to an interview-teacher situations, public employees and crimes
- Decide parameters of confidentiality
THE PROCESS Identify the scope of the investigation• Outline the organization’s expectations for the
employee raising the issue
• If EEO or conflict between employees--determine if it’s necessary to separate alleged “victim” and the “accused” and interview the relevant witnesses
• Gather and review relevant documents-often helpful in advance
• Identify any legal issues and seek advice-examples later
• Evaluate the evidence & decide
• Determine appropriate remedial action and type of post investigatory documentation to prepare
Identify the Documents to Be Reviewed
- Personnel documents (warnings, evaluations, etc.)
- Timecards and schedules- Manager memos, notes about the incident- Business documents- Expense reports/receipts- Journals, diaries, notes - Security tapes/videos- Consider Social media/electronic
communication (e-mails/texts)- ???
Identify Any Other Investigative Actions to Be Taken• Internet Searches• Video Surveillance• Internet and Computer Monitoring• Telephone Monitoring• Email, Texts, IM Monitoring• GPS Monitoring• Searches• Lie detectors
Scope of Investigation EEO Situations
Accused receive policy and/or training
Alleged victim harassed or discriminated against
Work environment tainted
Union Situations Union receive rules Accused receive rules Did accused violate
rules
Contract Employee Contract may contain
duties & performance standards
Was contract violated Others
Employee notified of law, policy, procedure, performance standard
Job description Employee handbook Policies or procedures Law
Did employee violate the above
Interviews Who should be interviewed
Third party reporter Alleged victim Accused/wrongdoer (note special rights/non-self
incrimination situations with teachers/public employees) Witnesses identified by parties
How should the interviews be done One by one Private May bring “representative” in certain situations
Unionized employees entitled to have representative in certain situations (page 25) or by contract as a right
Non-union employees not required
Representation at Interview
The right to be informed, in advance, of the subject matter of disciplinary interviews.
The potential right to union representation at such an interview.
The role of the union representative Will ask for time to talk in private before the meeting; Will take notes & record the names, dates questions; Will attempt to secure "due process" and fair treatment; Will work to make sure the grievant/interviewee is protected; Will object to any attempts to anger or frighten the interviewee; Will call a “timeout” to caucus or recess as needed; Will ask for questions to be rephrased or explained as necessary; Will make no permanent or undo-able decisions at that interview;
Cannot impede, interfere in the process of obtaining information
Cadet Rights
1. On February 1, 1994, a 3020a hearing panel determined that
Andre Cadet, a tenured teacher, was guilty of misconduct
with regard to his romantic relationship with a female
student. The panel dismissed the charge of insubordination
related to Cadet's refusal to answer questions before the
Special Commissioner of Investigations (SCI).
2. On April 1, 1996, the Appeal of the Board of Education of
the City School District of the City of New York against
Andre Cadet was held.
3. While the Commissioner of Education upheld the appeal in
part, the Commissioner agreed with the conclusion of the
hearing panel chair that the authority cited by the New York
City School District regarding Cadet's obligation to testify
before the SCI was in conflict with Education Law 3020-a,
since that statute is the sole method by which tenured
teachers can be disciplined in New York State.
4. As a result of this decision, a teacher need not answerquestions in any pre-hearing investigation, which precedes a3020-a proceeding.5. If a tenured teacher is asked questions in an investigation thatthe teacher believes could lead to disciplinary action, theteacher has the right to assert Cadet. By doing so, the teachercannot be held insubordinate when refusing to answer suchquestions.
Interviews What should be discussed
Confidentiality, no retaliation (EEO cases) Need for honesty Details (dates, times, description of what
occurred, parties involved, witnesses, documents)
What to expect after investigation Instructions on who to contact after
interview if they have questions or concerns (EEO cases)
With the Witness
• Contracting for expectations• Showing sensitivity toward interviewee• Putting interviewee at ease
Interview Questions
- Ask open-ended questions- Ask follow-up questions- Ask repetitive questions- Look for non-verbal signs- Avoid loaded questions- Avoid accusatory questions- Avoid compound questions- Don’t cut off the witness’ answer
Develop the Facts with the Interviewee
Within the relevant time frame, review blocks of time, and for each block establish:
- Exactly what happened- When did it happen- Where did it happen- What was said and by whom- Who was present and what do they know- Who might have relevant information- Are there any documents or other evidence
Employee Raising the Issue
Ask what the employee raising the issue wants the organization to do- Transfer, counseling/discipline of
offender, change policies, training, etc.
- Don’t promise what the result will be
Employee Raising the Issue
Issue confirmation with employee raising the issue
Identify issue (confirmation) Identify facts provided by employee Confirm these are all issues raised
Meet With Accused
Meet privately and disclose the complaint;
Stress that:- No determination has been made;- Interference with investigation and/or
retaliation is misconduct. Review the allegations and obtain
accused party’s responses.- Identify counter-witnesses.- Elicit opinion as to why complainant might be
making allegations.
How To Investigate: Interviews What to watch for
First-hand knowledge versus hearsay or rumor Credibility & bias Ability to corroborate testimony of others
What to do Take notes, summarize statements using
witness’s own words Have witnesses review and make corrections Signature optional
A Note About Notes
Investigative notes: Create a record to guide the
investigation; Preserve the record as memories fade.
In making notes: Strive to be accurate; Take care to use quotation marks; Be discreet in your annotations of
documents.
Searches, Surveillance and Monitoring
• Establish the expectation of privacy• New Jersey v. TLO, 469 US 325 (1985)-4th
amendment applies to school districts• Should be reasonable in scope—two fold inquiry,
was action justified at its inception and was there a reasonable relationship in the search’s scope to the circumstances that justified the initial interference
• Policy can offset privacy expectations
O’Connor v. Ortega, 480 US 709 (1987) Public Employer No policy Search of desk of employee still upheld Search arose from a reasonable suspicion that search of
hospital property would provide evidence of misconduct Workplace defined as work related areas and items generally
in employer’s control Examples in that case Differentiated between these public type spaces and the
employee’s purse, luggage, briefcase, car Absent any legitimate regulation or actual practice or
procedure an employee has an expectation of privacy in those private items (pages 27-28)
Telephone Call Monitoring
Federal Wiretapping Law prohibits interception of telephone calls.
Exceptions:• Consent – express or implied (from
policy and continued employment)• Business purpose
E-Mail Monitoring Federal Electronic Communications Privacy Act
(ECPA) is amendment to Wiretapping Act• Protects e-mail communications in transit
Federal Stored Communications Act• Protects e-mail in storage (in-box)
Service Providers (i.e. employers who provide the e-mail service) are exempted and can monitor emails
E-mail Monitoring (cont.)
Employees tend to think of e-mail as private communication
Organizations must implement a policy to notify employees that e-mail may be monitored and that employees have no right of privacy in their e-mail.
Text Message Monitoring
City of Ontario v. Quon – • City reviewed text messages sent on city-provided
pagers. Employee sued for invasion of privacy under Federal and California constitutions.
• In limited decision, the Supreme Court held that the City’s search was reasonable.
– No ruling on whether employees have right of privacy in communications on employer-provided equipment
– Recognized employer policies will govern expectations of privacy
Text Message/Instant Message Monitoring
Organizations must implement a policy to notify employees that their text messages may be monitored and that employees have no right of privacy in their text messages.
This should also apply to the use of instant messaging (IM) in the workplace.
Decide Parameters of Confidentiality Identity of complainant and accused
may or may not be material to investigation. To corroborate specific allegations,
generally must reveal identities; He said/she said, sometimes can obtain
information without disclosing identities. Either way, stress with all
interviewees the importance of avoiding discussion/gossip.
Interim Actions
Pre-Investigation Employment Actions
Determine if, at the pre-investigation stage, it is necessary to:
- Determine organization’s rights to interim action- Place the complainant on paid leave pending
the investigation- Place the accused on leave (paid or unpaid) - Temporarily transfer employees
- Be careful – transferring the complainant against his/her wishes can lead to further claims
- Change supervisory responsibilities- Address safety concerns
Key Points of Consideration
• Will administrative leave take place before or after you confront the accused?
• Will removing the accused make things better or worse?
• Who should you consult beforehand? HR? Legal? Is a risk or threat assessment necessary?
Key Points of Consideration
• How will you respond to the accused when asked why removing him or her is necessary?
• What, if anything, should co-workers and members of the public be told about the employee’s departure?
Key Points of Consideration
• What are the terms of the leave? With pay? Who should he or she contact? What should he or she do during that time?
Reviewing Documents Which Documents Should Be Reviewed
Documents identified by parties or witnesses Company records that may corroborate one side
or the other Ask all interviewees for notes taken at any time Personnel files & discipline records of the parties
Focus first on company records Precautions with company records
Restricted access to records (medical, EEO) Email and computer records require policy/notice Maintaining confidentiality of records
Reviewing Documents Access to non-company records will be
limited Subpoenas generally not available without
suit/charge/motion for pre-suit discovery HIPAA and other privacy concerns will require
you to obtain consent forms (i.e. telephone records)
May have to rely on voluntary cooperation by third parties
Be careful about workers’ compensation records Privacy concerns ADA issues
How To Investigate: Other Methods Lie Detectors
Federal and state laws different Very risky
Deferring to Government Agencies Typically police or regulatory
agencies You lose control over timing and focus
of investigation Management & HR issues not an issue
How To Investigate: Other Methods Private “Investigators”
Will be considered “agents” of company Ineptness can result in negligence claims Considerations when retaining expert
Qualifications & reputation of investigator Scope of investigation Type of work product Ability to testify and credibility on stand Cost & who pays Confidentiality
Evaluating the Evidence Do not make decision until all evidence is
gathered Key questions to ask:
Did the employee know the rules? Did the employee violate the rules? Are there mitigating circumstances? Is discipline appropriate?
Based on legitimate, nondiscriminatory business reason? Consistent with contractual obligations and established
company practices? Preponderance of the evidence establish
guilt If Just Cause---be aware of the “seven tests”
Seven Tests of Just Cause The basic underlying principle in
disciplinary cases is that the employer must have "just cause" for imposing the disciplinary action. A common test for determining whether "just cause" existed was developed by Arbitrator Daugherty in the celebrated Enterprise Wire case (46 LA 359, 1966 and 50 LA 83).
Seven Tests of Just Cause
A flat "no" answer to one or more questions indicates that the employer's action was arbitrary, capricious and/or discriminatory in one or more respects, thereby signifying an abuse of managerial discretion and allowing the arbitrator to substitute his/her judgment for that of the employer.
Seven Tests of Just Cause1. DID MANAGEMENT ADEQUATELY WARN THE EMPLOYEE OF THE
CONSEQUENCES OF HIS/HER CONDUCT?2. WAS MANAGEMENT'S RULE OR ORDER REASONABLY RELATED TO
EFFICIENT AND SAFE OPERATIONS?3. DID MANAGEMENT INVESTIGATE BEFORE ADMINISTERING THE
DISCIPLINE?4. WAS THE INVESTIGATION FAIR AND OBJECTIVE?5. DID THE INVESTIGATION PRODUCE SUBSTANTIAL EVIDENCE OR PROOF
OF GUILT?6. WERE THE RULES, ORDERS AND PENALTIES APPLIED EVENHANDEDLY
AND WITHOUT DISCRIMINATION TO ALL EMPLOYEES?7. WAS THE PENALTY REASONABLY RELATED TO THE SERIOUSNESS OF
THE OFFENSE AND THE EMPLOYEE’S PAST RECORD?
Remedial Action Deciding What Discipline to Impose
Adhere to stated policies & procedures Other considerations
Severity of misconduct Remorse shown by offender (EEO cases) Offender’s discipline record (important for union
situations) Treatment of similarly situated persons
(important for union situations) Mitigating circumstances
Remedial Action Violation Found
Discipline the offender
Make victim whole, if applicable
Inform those who “need to know”
Monitor situation to prevent retaliation
No Violation Found Inform those who
“need to know” Monitor situation
to prevent retaliation
Documentation
Copy of applicable policy, procedure or rule that was violated
Interview summaries Copies of documents relied upon Memo summarizing findings Discipline notice Any response from offender
Attorney-Client Privilege
HOW T PROTECT IT, WHAT IT IS—PAGE 20
Final Suggestions Get organized
Think through the procedure ahead of time Prepare a checklist Forms can be helpful
Get “buy in” to process Make it a routine Be thorough Document
Questions