Workplace Investigations (Series: Protecting Your Employee Assets: The Life Cycle of the Employment Relationship)
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This webinar discusses best practices for conducting internal workplace investigations. It covers when investigations should be triggered, the scope of formal vs informal investigations, elements of an effective investigation, who should conduct the investigation and be interviewed, documentation methods, final report preparation, and special considerations regarding confidentiality, privacy, and rights of interviewees. The webinar aims to provide guidance on properly handling investigations to determine policy violations while avoiding legal exposure.
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Workplace Investigations (Series: Protecting Your Employee Assets: The Life Cycle of the Employment Relationship)
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- 2. 2 Practical and entertaining education for attorneys, accountants, business owners and executives, and investors.
- 4. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 4
- 5. Meet the Faculty MODERATOR: Charles Krugel - Law Offices of Charles Krugel PANELISTS: Helen Bloch - Law Offices of Helen Bloch, P.C. Max Barack - The Garfinkel Group, LLC Gary Savine - Savine Employment Law, Ltd. 5
- 6. About This Webinar - I Know What You Did Last Summer: Workplace Investigations Now, more than ever, employers must be prepared to promptly and effectively respond to complaints of workplace harassment and/or discrimination. Often, that requires knowing when and how to conduct an internal investigation. Given the significance of the issues often at stake and the potential for a negative outcome (attorneys’ fees, high dollar settlement, negative PR), learning on the fly is not a viable option when undertaking an investigation. This program covers a host of questions, including what sort of issues should be investigated, who should conduct the investigation, what steps should you take and in what order, who should be interviewed, what sort of documents should be created and how do you close out the investigation? It also explores the investigation process and provides guidance from a seasoned investigator as to how to handle the many issues that you will often confront during the course of an investigation. 6
- 7. About This Series- Protecting Your Employee Assets: The Life Cycle of the Employment Relationship 2020 If you have employees or advise companies with employees, this webinar series is for you! No employer—whether large, medium or small—is immune from the reach of federal, state and/or local employment laws and regulations. Now, more than ever, employers should consider taking a proactive approach to auditing their employment practices and policies so that they can better respond when issues arise. This webinar series approaches the employer-employee relationship from beginning to end, with programs covering the most important steps along the way, including hiring and onboarding, policy and procedure development and training, wage and hour compliance, accommodating disabled employees, conducting investigations and considerations associated with ending the relationship. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 7
- 8. Episodes in this Series #1: Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants Premiere date: 1/26/21 #2: An Ounce of Prevention: Policies, Procedures and Proactivity Premiere date: 2/23/21 #3: Time for a Break: Managing Leaves of Absence and Accommodating Disabilities Premiere date: 3/23/21 #4: Show Them the Money: Wage & Hour Compliance Premiere date: 4/20/21 #5: I Know What You Did Last Summer: Workplace Investigations Premiere date: 5/11/21 #6: It’s So Hard To Say Goodbye: Minimizing Risk When Terminating Employees Premiere date: 6/15/21 #7: The Impact of Communicable Diseases, Including Coronavirus, on the Workplace Premiere date: 7/13/21 8
- 9. Episode #5 I Know What You Did Last Summer: Workplace Investigations 9
- 10. Overview 10
- 11. What is an Internal Investigation? • Compliance tool to determine whether policies or procedures have been violated by an employee • Assures adherence to company goals, mission & values • Assures quality in products or services • Ensures a sound & factual basis for informed decision-making or appropriate discipline • Reduces exposure to claims / risk management 11
- 12. When is an Internal Investigation Triggered? • Complaint or report of policy violation Even if victim insists on no action Written or verbal complaints • Management observation • Injury or illness • Threats • EEOC, NRLB or other lawsuit Even if employee did not complain internally • DOL, unemployment compensation audit • Theft of company property or information 12
- 13. When is an Internal Investigation Required? • If discrimination laws are implicated (Title VII, ADA, ADEA) Farragher/Ellerth Defense • OSHA • Drug Free Workplace Act • SOX • Securities Act • DOT regulations • HIPAA 13
- 14. Scope of Internal Investigations • ―Informal‖ investigation? Minor policy violation Resolve the issue quickly without many interviews or witnesses • ―Formal‖ Investigation? If there is legal exposure Serious policy violation Need to document & result 14
- 15. Formal Internal Investigations • How serious is the policy violation or conduct? • How many employees are involved? • Is there an immediate threat to loss of company information or danger to employee(s)? • What areas of law are implicated? • Does the investigation need to be completed immediately? ―Statute of limitations?‖ 15
- 16. Formal Investigations Should Take Place Immediately • Lock in witnesses’ stories & recollections • Contemporaneous accounts are usually more credible • Documents / E-mails / texts can be lost or destroyed • Prevent spoliation & potential adverse inference at trial • Witnesses may leave the company • Ensures compliance with legal duty to investigate promptly & thoroughly 16
- 17. Elements of a Good Internal Investigation • Prompt – but not rushed • Thorough – but not too long (sliding scale) • Confidential – as much as possible but no absolute guarantees • Impartial & objective • Conducted by disinterested & respected personnel or third parties • Effective at facilitating an appropriate outcome for all sides 17
- 18. Conducting an Effective Investigation 18
- 19. Outline of Internal Investigation • Identify goals & outline plan • Identify investigator or team of investigators • Gather documents Personnel file Prior complaints E-mails, documents, correspondence, texts Employee handbook or policies implicated CBA (collective bargaining agreement) – if unionized 19
- 20. Outline of Internal Investigation • Maintain investigation file Interview notes of all witnesses Signed statements Final report with conclusions & recommendations • Consider external resources Outside counsel Private investigators IT (information tech or forensic examinations) 20
- 21. Who Should Investigate? • Human Resources Good for minor violations of policy • Outside consultant/investigator Particularly if there could be a conflict of interest or you want appearance of impartiality • In-house or outside counsel If a threat of litigation • Forensic examiners Electronic data or misappropriate of proprietary information, FLSA claims • Law enforcement If violence or theft is suspected 21
- 22. Who to Interview? • Decide who to interview & when Complainant Victim (if not the complainant) Accused Witnesses o Employees in the same department o Employees other witnesses identify as knowledgeable o Authors of documents Management HR Experts within the company • Typically interview the complainant, then the accused, then witnesses & conclude with the complainant again 22
- 23. Interview Techniques • Prepare an opening statement Thank interviewee Explain what you are investigating Explain why the interviewee was selected Explain that the company takes this matter seriously & has a commitment to investigate Cooperation is expected Company has firm no-retaliation policy Information will be kept ―as confidential as possible‖ 23
- 24. Interview Techniques • Use traditional, deposition style questions: Ask open-ended questions Don’t dominate the conversation Allow time for follow up & responses; don’t rush the witness Active listening & follow-up Cover all bases (―Is there anything else you can remember?) Ask if there is anyone else you should speak to 24
- 25. Interview Documentation • Written statement from witness • Recorded interview/statement from witness • Interview notes Personal observations vs. reported facts • Summary memorandum • Relevant documents relied upon & used for each interview • Report Include recommendations for action? 25
- 26. Other Sources of Information • Metadata • Emails • Text messages • Instant messages • Voicemails / telephone records • Home computers • Personal electronic devices • Video / audio surveillance • Social networks 26
- 27. Final Report • Consider format of final report Formal? Summary? Memo to file? • Who will read it? Board of Directors Outside auditors Legal counsel Government agencies? Plaintiff’s counsel? Press Law enforcement 27
- 28. Fundamentals of Final Report • Report should contain: Summary of the issues Relevant facts Methodology used to conduct the investigation Scope of the investigation Applicable law Findings Recommendations 28
- 29. Next Steps • Appropriate remedial action taken To the accused o Discipline for the misconduct o Consistent with past practice o Sufficient to avoid future problems To the victim o Restore lost job benefits & compensation o Report results of investigation o Confirm in writing To others to avoid future conduct Avoid retaliation! 29
- 31. Special Considerations • Attorney-Client Privilege Upjohn v. United States But, must give a corporate ―Upjohn‖ warnings o Counsel represents the company, not the individual o Employee being interviewed to assist counsel in providing legal advice o Statements made by employee will be shared with company o Communications are privileged o Company alone owns the privilege 31
- 32. Rights of the Interviewee • Right to counsel? If accused is facing possible criminal charges If employee reasonably believes answer would incriminate them in a criminal case • Right to a ―friend?‖ • Right to union representative? Consider whether CBA applies to investigations of complaints • Can an employee refuse to participate? 32
- 33. Confidentiality Issues • Can you keep the investigation confidential? NLRB’s position o Employer cannot maintain a blanket policy/rule regarding the confidentiality of employee investigations. o Employer must demonstrate a need for confidentiality on a case by case basis – is there a ―legitimate & substantial business justification‖ that outweighs Section 7 rights? EEOC’s position o Similar to NLRB 33
- 34. Privacy Issues • Does the employee have a reasonable expectation of privacy in private files on office computer? Courts are split – some find that private emails sent from work computer is protected & some find they are not • Social networking privacy State laws restrict employers from asking for passwords to social media accounts or passwords to private email accounts Don’t ask a subject of an internal investigation to grant access to their online social networking accounts as part of the investigation. 34
- 35. Strategies to Avoid Claims after Investigation 35
- 36. Strategies • Regularly train managers & supervisors on HR policies • Develop & disseminate policies to lower privacy expectations • Investigate only on reliable, documented factual allegations that justify investigation • Do not investigate more than necessary • Maintain confidentiality to the extent possible • Use the appropriate investigator • Make decisions & take action 36
- 38. About The Faculty Charles Krugel - [email protected] As a management side labor & employment attorney & human resources (HR) counselor, Charles Krugel, www.charlesakrugel.com, has 25 years of experience in the field & has been running his own practice for 20 years. His clients are small to medium sized companies in a variety of industries. Charles has been lead negotiator for hundreds of labor & employment agreements & contracts. Additionally, he’s litigated dozens of court cases, administrative proceedings & arbitrations. In addition to providing traditional labor & employment law services, he represents companies desiring to institute preventive & proactive HR functions. These functions include policies & procedures, which help to efficiently & discreetly resolve issues in-house & prevent lawsuits & complaints; they also help to reduce costs & act as catalysts for increasing productivity & profits. Moreover, he’s frequently the subject labor & employment law related TV, radio & print interviews. 38
- 39. About The Faculty Gary Savine - [email protected] Gary Noah Savine is an employment lawyer and the founder of Chicago-based law firm Savine Employment Law, Ltd. Gary brings to the table over twenty years of legal expertise and hands-on experience, working around the globe, shoulder-to-shoulder with senior executives and human resource professionals solving the thorniest of workplace disputes. Before starting his firm, Gary practiced employment law exclusively at two of Chicago’s largest law firms and served as chief employment counsel at Navistar (NYSE: NAV) and Hill- Rom Holdings (NYSE: HRC). Gary frequently speaks and writes about employment law issues. He has written and presented before the American Bar Association, the National Employment Lawyers Association, the Northern Illinois Society for Human Resources Management, the Northern Illinois Franchise Association and the American Conference Institute. Gary received his law degree cum laude from the University of Michigan Law School in 1996. More information about Gary’s firm can be found at www.savinelaw.com. 39
- 40. About The Faculty Helen Bloch - [email protected] In 2007, Helen Bloch founded the Law Offices of Helen Bloch, P.C., a general practice firm that is a Certified Female Business Enterprise. In the employment & business context, Helen represents clients on all sides of the employment relationship- individual employees, managers, or employers. Routinely Helen negotiates & counsels clients on employment agreements, including non-competition, confidentiality, & severance agreements. Also, she drafts employment handbooks & various policies & procedures. Helen will advise businesses on best practices, including providing sexual harassment training. Helen has lectured on topics such as gender role in the law, legal issues affecting small businesses, & legal rights & obligations from multiple sides of the employer-employee relationship. For the past two years she has been selected for inclusion in Super Lawyers in the area of employment law. Helen is President of the Decalogue Society of Lawyers & serves on the Alliance of Bar Associations, where she assists in screening judicial candidates. Her other bar association memberships include the Illinois chapter of the National Employment Lawyers Association, Women’s Bar Association of Illinois, & the Illinois State Bar Association. An active National Association of Women Business Owner’s (NAWBO) member, Helen leads NAWBO’s Lincoln Park Business Exchange Group. 40
- 41. About The Faculty Max Barack - [email protected] Max leads the Garfinkel Group, LLC's employment law practices groups and is a plaintiff-side employment law attorney. He has been practicing law since 2013 and has spent the majority of that time handling plaintiff-side employment matters. He concentrates his practice primarily on representing plaintiffs in their claims of discrimination, as well as wage & hour violations, whistleblower actions, & severance negotiations. He has extensive litigation experience, with a focus on electronic discovery (ESI). He has represented & assisted employers in defending discrimination & wage & hour disputes, including in department of labor investigations. He is a member of the Board of Directors of the National Employment Lawyers Association of Illinois & co-chair of its Legislative Committee. He is a regular contributor to the Chicago Bar Association's @theBar blog, & is fluent in Spanish. J.D., Chicago-Kent College of Law B.A., University of Michigan 41
- 42. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at [email protected] with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 42
- 43. About Financial Poise 43 DailyDAC LLC, d/b/a Financial Poise™ provides continuing education to attorneys, accountants, business owners and executives, and investors. It’s websites, webinars, and books provide Plain English, entertaining, explanations about legal, financial, and other subjects of interest to these audiences. Visit us at www.financialpoise.com Our free weekly newsletter, Financial Poise Weekly, updates you on new articles published on our website and Upcoming Webinars you may be interested in. To join our email list, please visit: https://www.financialpoise.com/subscribe/