Conducting Internal Investigations

08/03/2021

INTRODUCTION: WHY INVESTIGATE?

Are investigations worth the business interruption and toll on the human resources of your Company? Absolutely. Workplace investigations are a legal necessity now more than ever. Courts and administrative labor and workforce agencies expect Companies to conduct sophisticated, thorough and timely investigations into alleged employee misconduct, i.e., hostile work environment, sexual harassment, discrimination, and internal complaints of a serious nature. In fact, the EEOC’s enforcement guidelines advise employers to set up a “mechanism for a prompt, thorough and impartial investigation in alleged harassment,” and that “as soon as management learns about the alleged harassment, it should determine whether a detailed fact finding investigation is necessary.” And, importantly, the law rewards Companies who take complaints of discrimination and other misconduct serious enough to investigate.

Affirmative Defenses. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v.City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court established an affirmative defense available to an employer accused of sexual harassment. The affirmative defense is

available only to employers who prove by a preponderance of the evidence:

the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. When determining whether an employer qualifies for this defense, Court’s will look carefully at whether the Company investigated the alleged claims of harassment or discrimination, and then assess the quality and credibility of the workplace investigation. See, e.g. Silver v. General Motors Corp., 225 F.3d 655 (4th Cir. 2000) (finding GM established first prong of Faragher affirmative defense because sexual harassment policy was “widely known” and GM promptly investigated the employee’s complaint and took remedial action against the harasser.);Vincent v. Aztec Facility Services, Inc., 2007 U.S. Dist. LEXIS 67732 (N.D. Tex. Sept. 12, 2007) (barring employer from establishing affirmative defense because Company did not conduct a vigorous investigation and the investigator conceded she did not follow the Company’s standard procedures for investigating a harassment complaint.)

 

Liquidated Damages. Under the Age Discrimination in Employment Act (“ADEA”), liquidated damages in the form of doubling an award of back pay damages are available to Plaintiff employees who establish a “willful” violation. The Supreme Court interprets willful to mean a violation in which the employer knew, or showed reckless disregard as to whether its conduct was prohibited by the ADEA. Liquidated damages are also available under the Fair Labor Standards Act (“FLSA”) in the form of doubling lost wages. A proper workplace investigation will make it very difficult for employees to prove willful violations under the ADEA or the FLSA.

 

Punitive Damages. Title VII allows for punitive damages in discrimination cases. Punitive damages will be assessed when an employer engages in discriminatory practices with “malice or with reckless indifference to the federally protected rights of an aggrieved individual.” But, the Supreme Court has stated an employer cannot be liable for punitive damages if the manager’s challenged actions “were contrary to the employer’s good faith efforts to comply with Title VII.” Kolstad v. American Dental Ass’n 527 U.S. 526, 546 (1999). In other words, an employer must “make a good faith effort to educate its employees about these policies and statutory prohibitions” and “make ‘good faith efforts to enforce an antidiscrimination policy.’ ” Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir.2000) (citing Kolstad, 527 U.S. at 546).

Preservation of Evidence. When faced with a discrimination or other workplace complaint, the potential for litigation should be presumed. The Company will be in a better position to defend itself if an internal investigation was immediately commenced after the incident, and timely completed. The investigation will uncover and create evidence that may be valuable in defending your claim. You might also find evidence that incriminates the Company. While your instinct might not be to preserve that evidence, if you fail to do so, the Company could be liable for a spoliation of evidence claim in Court. Spoliation claims deal with the destruction of evidence and courts can enter severe monetary and other sanctions against Company’s that are found to have engaged in spoliation. The type of evidence you uncover and be required to preserve may include electronic and/or tangible data, information, documents, objects, text messages, social media postings, witness interviews, email messages, etc.

 

Insurance Policy Compliance. Some insurance policies require the insured to investigate and report incidents that have not (yet) risen to the level of an actual “Claim” under the policy. Most employers understand when they are sued to tender the claim to the insurance company immediately. But many employers do not realize the duty to investigate, preserve evidence, and report incidents and occurrences that carry the potential of litigation and the potential of invoking insurance coverage. Failing to properly investigate and report claims that may result in covered litigation may jeopardize your Company’s coverage and you will be left to pay defense costs and any damages.

Non-legal Reasons. Your workforce needs to trust management to consistently enforce its policies and procedures.

Management cannot establish this trust without actively investigating complaints of discrimination and other work place issues that inevitably arise. Moreover, when you establish a consistent pattern of investigating formal and informal claims of misconduct, employees will think twice about violating Company polices because they know such violations will not be ignored. Workplace investigations deter misconduct.

 

 

 

INVESTIGATION TRIGGERS
The circumstances that might lead to an investigation are enumerable, but some examples may include:

Complaints by an employee of specific discrimination or harassment;
Observation of discrimination, even if the discrimination is not reported;
Violations of company rules or policies;
Suspected violation of drug or alcohol abuse;
Misappropriation of trade secrets or other intellectual property;
Abuse of social media sites;
Fraud or other misconduct;
Release of confidential information (e.g., HIPAA violations);
Theft, vandalism or other sabotage;

 

PRE-INVESTIGATION PROCESSES.

 

Establishing Investigation Policies and Procedures. Does your Company handbook set forth proper investigation policies and procedures, such as (1) when an investigation should be conducted,
who should conduct the investigation, (3) how to conduct the investigation, (4) how and under what circumstances employees may report incidents or request an investigation? Employers should maintain and disclose these policies to managers and employees so there is clear notice that investigations may occur during employment, and so the designated investigators (HR, counsel, other managers) are prepared

 

when legal lighting strikes! Incidents in the workplace develop quickly and require immediate action. There generally is little time for a thorough review of investigation policies and procedures so the proper training should be provided on a regular basis. Importantly, employer’s investigation policies should include an electronic communications privacy standard that sets employees’ expectations with respect to the monitoring, reviewing and even confiscation of company computers, phones, email accounts, text messages, public social media postings, and voice messages.

 

Selecting the Investigator. Determining who should conduct the investigation is an important part of the initial planning. The investigator should know the basic techniques of investigation and have a thorough understanding of the company’s policies and procedures, as well as a solid grasp on the relevant law, with the assistance of counsel. Whenever possible, the investigator should not have close ties to either the complainant or the accused employee. The investigator should also be able to:
develop a rapport with witnesses;
employ a variety of techniques to obtain information from witnesses who may be angry, embarrassed, defensive or otherwise reluctant to cooperate;
effectively interview witnesses regarding uncomfortable or delicate subjects;
ask appropriate follow-up questions on new information revealed during an interview;
and judge the credibility of witnesses.
It is also important to consider the credibility of the investigator because if the matter results in legal action the investigator could be required to testify on behalf of the employer. If the investigator chosen is not an attorney, it is helpful to have counsel available for the investigator to seek guidance and advice.

 

An Investigator from within the Company. Choosing an internal investigator typically lowers the cost of the investigation for the employer, especially if the individual is already an employee. Internal investigators can typically initiate an investigation more quickly than an external investigator because they are likely more familiar with the company’s organization, procedures and policies, and goals. An internal investigator is usually already located at or near the site of the complaint and may be familiar with the individuals involved. An internal investigator will also likely give management greater control over the scope of, and the individuals involved in, the investigation.
On the other hand, an internal investigator may appear to lack impartiality and independence. Business may be interrupted because the investigator will often still have to regular duties to attend, making it difficult to quickly and efficiently complete the investigation. Subordinate employees may feel uncomfortable speaking with an investigator if he or she is also a supervisor. Choosing an investigator from human resources may alleviate some of these concerns. A human resources employee may be considered by other employees to be more impartial in part because they are one step removed from of the day-to- day operations and disputes of the workplace. Additionally, those from human resources have often received training on workplace disputes and investigations.

An Outside Investigator. External investigators (regular outside counsel, Accountants, or Security Personnel) should be considered particularly where the incident at issue involves serious misconduct that is likely to lead to litigation, or that involves high-level executives. External investigators should also be utilized when a conflict of interest exists between the investigator and the parties involved in the incident at issue.
External investigators have several advantages over in-house counsel. For example, external investigators may be able to more quickly complete the investigation on a project specific basis. External investigators are also likely to have developed and focused investigative skills and a unique grasp of the legal ramifications and information obtained. Moreover, external investigators will likely be perceived as

 

independent and objective and they typically gain a greater respect from interviewees who have to participate in the investigation. An external investigator might be more comfortable asking certain questions as well. And, if necessary, it is typically easier for an external investigator to stand up to management.

Importantly, the use of outside counsel to conduct the investigation invokes the attorney-client privilege and work product doctrine. The witness interviews and other important elements of the investigation will be protected and the results of the investigation private. For the attorney-client privilege and/or work product doctrine to attach, counsel must conduct the investigation for purposes of providing legal advice or in anticipation of litigation.

One deterrent for employers is the additional and sometimes high cost of hiring an outside investigator. But depending on the potential exposure, or the threat of litigation, it may be money well spent.

Rule 3.7, Lawyer as Witness. Rule 3.7 addresses the lawyer- witness issue and provides:(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be necessary as a witness unless:(1) The testimony relates to an uncontested issue;(2) The testimony relates to the nature and value of legal services rendered in the case; or(3) Disqualification of the lawyer would work substantial hardship on the client.(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.¶5 Rule 3.7 does not automatically require withdrawal.1Rather, Rule 3.7(a) provides that a lawyer may not act as an advocate at trial if she is likely to be a “necessary” witness. Whether or not this lawyer’s testimony is necessary is a fact-specific question the lawyer being summoned must resolve. If the testimony is duplicative and obtainable from other sources, her testimony may not be necessary, and the lawyer should not withdraw or should not be subject to disqualification.2 “The naming of a party’s attorney does not ipso facto render the named attorney a ‘necessary witness’ . . . nor does the availability of other competent witnesses for the same testimony automatically render the named attorney ‘unnecessary’.”

 

ARCHITECTURE OF THE INVESTIGATION.

 

Temporary Remedial Measures. Once a workplace incident occurs that necessitates an investigation, management should immediately and proactively act to ensure that the conduct complained of does not continue to occur during the pendency of the investigation. For example, an employee accused of sexual harassment should be separated from the alleged victim. This might even include leave for the accused until the investigation is complete.
Setting the Scope of the Investigation. Not every investigation needs to rise to the level of the Spanish Inquisition. Leading up to the investigation, the investigator should identify the scope and parameters of the investigation, keeping in mind that while the investigation should be thorough, the disruption to the Company’s business should be the least amount possible. The investigator should consider and determine:
What it the subject matter of the investigation?
What issues must be covered?
What issues should not be addressed?
Have the employment policy and procedures at issue been reviewed thoroughly?
Are there any potential obstacles to proceeding with the investigation?
What documents should be reviewed and gathered prior to the investigation?
What electronic information should be included and gathered in the investigation?
What witnesses should be interviewed?
When should the investigation be completed?
Who should be put on leave, if anyone?
What employees’ emails, text messages or electronic media should be reviewed prior to the investigation?

 

Does the Company’s electronic communications policy allow a Company investigator to review employee emails, text messages and other electronic media?
Collecting and Reviewing Evidence. Pursuant to Company policy (including electronic communications policies), the investigator should obtain and review evidence that is related to the investigation. This evidence may include documents, personnel files, written formal and informal complaints, surveillance video, voice mail recordings, text messages, emails, public social media postings, and any other electronic or tangible documents related to the incident. This should typically be completed prior to witness interviews so the investigator has sufficient data to ask appropriate and probing questions during the interviews. The investigator should maintain a separate investigative file that organizes and preserves all of the relevant evidence, and eventually the investigators findings.
General Considerations for Conducting Interviews.
In conducting the interview:

The investigator should have an additional assistant with him or her who is dedicated to taking copious notes. The interviewer should be focused on the questions and not on the note taking. Also, having an additional person at the interview will provide credibility to the substance of the interview.
Always start with asking the employee to tell the truth and assure them they will not be retaliated against for participating in the investigation.
Explain the general purpose of the interview, (there has been a report of sexual harassment against , and we wanted to ask you a few questions concerning any knowledge or information you have about the incident).
Ask broad open ended questions to begin the interview, and narrow the questions as you go.
Appear impartial and do not take sides during an interview.
Don’t be afraid of silence after you ask a question.

 

Follow up with detailed questions on the source of information provided.
Avoid disclosing the information you received from other witness interviews. The investigator’s job is to gather information, and not disseminate it.
Do not finish the employee’s sentences or interrupt the employee’s responses.
Save tough or confrontational questions until the end, but be sure to ask the tough questions to ensure you have all the information the witness has.
In the event the employee refuses to talk or provide answers to specific questions, the investigator should document the insubordination.

 

The following types of questions should be asked in every investigation:
Who?
What?
When?
Where?
How?
Why did this happen?
What other employees or individuals might have relevant information?
What could have been done to avoid the incident?
What evidence do you have concerning the incident, (notes, emails, text messages, recordings)?
Who have you told about the incident?

 

Interviewing the Complainant.
Typically, the complainant is the first to be interviewed.
The investigator should explain his or her investigatory role to the complainant and acknowledge that the employer takes the complaint seriously and is appreciative of the complainant’s willingness to come forward with the complaint.
It is best if the complaint is received officially in writing. But if the complainant does not wish to give the complaint in writing, the investigator could write the complaint and have the complainant sign it.
Interviewing the complainant alone is preferred, but often a complainant wishes to speak to the investigator with a companion or confidant in the room. Having someone else in the room may impact the truthfulness or completeness of the complaint and its details. If the employee is non-union, the general rule is to not allow representation or an additional third party attending the interview.

 

There are many questions that an investigator could ask the complainant, but at the very least he or she wants to ask the basic who, what, where, and when questions.

Who committed the alleged harassment or misconduct?
What exactly occurred or was said?
Where did it occur?
When did it occur, and how often?
Did the complainant tell the offender that the conduct was offensive and that it must stop?
What else did the complainant do to discourage the conduct?
Is the offensive conduct still occurring?
Did the complainant report the incident to his or her supervisor or anyone else in management?
Did the complainant mention the incident to a co-worker or anyone else?

 

Did the complainant make a complaint under the EEOC policy?
Are there witnesses, documents, or other evidence that corroborates the complainant’s allegations?
How did the harassment or misconduct affect the complainant (psychologically, physiologically, and economically)?
Why does the complainant think this happened?
Who does the complainant think is to blame?
What was your working relationship with the accused?
Does the complainant think this could have been avoided, and how?
Does the complainant know if the person who harassed him or her harassed anyone else?
Does the complainant know if anyone has ever complained about harassment by that person?
How would the complainant like the situation resolved?
The investigator should not promise anonymity?

 

Interviewing the Accused.
After interviewing the complainant, the investigator typically should get a response to the allegations from the accused. It may be advisable to interview any available witnesses first, to get a better understanding of what may have occurred, before interviewing the accused.
The investigator should explain that a claim of inappropriate conduct has been made, and that the employer is attempting to determine whether the allegations have merit before making any personnel decisions. The investigator is simply asking to hear the employee’s side of the story with a fair and open mind.
The accused should be told that all information from the investigation will be handled as discreetly as possible.

 

It needs to be clear to the accused that there are policies against any form of retaliation and that it will not be tolerated. Retaliation could result in discipline or even termination, if necessary.

 

With respect to specific questions for the accused, there is important ground to cover:

An effective starting point is to ask the accused if he or she is aware of any personnel issues in the workplace. If the employee denies any such knowledge, the investigator should then give the accused a brief description of the allegations against him or her.
The accused should then be given time to respond to each of the allegations and the investigator should explain to the accused that he or she is expected to cooperate in the investigation and that there will be negative consequences for being untruthful or uncooperative.
If the accused claims that the allegations are false, ask why the complainant might lie or might have a motive to make false claims.
If there is a specific policy violated in the complaint, the accused should be asked if he or she is familiar with the policy and if he or she ever received any training about that policy.
Ask the accused if there are any persons that the investigator should speak to or any relevant evidence or documents that support the accused’s position.

 

Interviewing Additional Witnesses.
As mentioned above, the investigator may want to interview one witness, or many, before confronting the accused. This strategy could minimize the risk of any interference by the accused with the investigation, such as tampering with any possible witnesses.

The witnesses are crucial in attempting to substantiate the allegations of misconduct. They can also help determine the severity of the alleged conduct. To be fair and thorough during the investigation, the investigator must interview any witness identified by the complainant as

 

having personal knowledge of the offending conduct. Along the same vein, the investigator must also interview any witness identified by the accused as having relevant information to support his or her position.

When considering if any other employees should be interviewed, the investigator should consider the possibility of disrupting the workplace. The possibility of disruption should be weighed against any benefit that might be gained by involving more people in the investigation process.

 

Concluding the Interview.
Every interview should be concluded by asking the interviewee if he or she has told the investigator everything. This final open-ended question can help prompt more detail or even one last thing that might be critical to a quality investigation. This question can be as simple as, “Is there anything else you would like to tell us?”

After all of the questions have been asked, the investigator should try and recount or rephrase each significant point that has come to light in the interview. This helps to clarify any misunderstandings and fill in pieces that might be missing in the investigator’s record. The investigator should remind the interviewee that it is perfectly appropriate to contact the investigator if he or she has any questions or thinks of anything else he or she would like to tell the investigator about the situation.

In closing, the investigator should remind the interviewee to keep the information discussed during the interview confidential. If the accused is the one being interviewed, the investigator should remind him or her, once again, that retaliation will not be tolerated. Lastly, the investigator should remember that it is okay to re-interview anyone if additional information becomes known that is related to anything that was previously provided in one or more of the interviews.

 

FINALIZING THE INVESTIGATION.

 

Memorializing the Interview and Preserving the Investigation.
The investigator should explain at the beginning of the interview that he or she will be taking notes. The notes that the investigator takes should be factual. Appropriate notes about an interviewee’s demeanor

 

may also be included if they are relevant to credibility. An investigator should have a note taker present to ensure that as much detail as possible is recorded. Generally, it is advised to avoid transcribing or recording interviews. A word-for-word recording of interviews is not necessary.

Along with keeping records of the interviews, throughout the investigation, an employer should document the steps that it undertook to investigate the employee’s complaint. Written and signed statements from each of the interviewees would be included in these documents. Even if an interviewee states that he or she knows nothing about the relevant events, that fact should be recorded and kept in the records.

It is always best to conclude an investigation with a written summary or report. This report should be written from a neutral prospective and should include the allegations, the investigative steps taken, the witnesses, the standard questions asked, the witnesses’ response and the investigators conclusions, including any credibility determinations. The investigator should prepare a final written report presuming that the report will be discoverable in subsequent litigation or administrative actions.

Typically, it is best to separate the ultimate decision maker from the fact finder. Once the investigation is complete, the investigator should discuss all of the facts that he or she gathered with the person or group of people that will ultimately be making the decision or will be giving advice about appropriate action. Then, the employer will work on writing his or her final conclusions. Generally, an employer does not want to save any drafts of this document and the employer’s final conclusions should be carefully written, should not speculate, and should not unjustifiably criticize the employer or other employees.

Remedial Action.
In the event the investigative report leads management to conclude the accused is guilt of the allegations, or has violated Company policies and procedures, management should take prompt remedial action. The disciplinary action must be reasonably calculated to end the harassment. In determining reasonableness, courts, and the Tenth Circuit in particular, will look at (1) whether the conduct stopped, (2) the timeliness of the employer’s response to the complaint, and (3) whether

the response was proportional to the seriousness and frequency of the harassment or misconduct. The Tenth Circuit has found the following discipline to meet the reasonableness criteria (though each case turns on its own particular facts): prompt investigation of the allegations, proactive solicitation of complaints, scheduling changes and transfers, oral or written warnings to refrain from harassing or other inappropriate conduct, reprimands, and warnings that future misconduct could result in progressive discipline, including suspension and termination. See Adler v. Wal-Mart Stores Inc., 144 F.3d 664 (10th Cir. 1998).

OTHER CONSIDERATIONS.

When conducting an investigation, employers should keep a number of other issues in mind.

“Weingarten Rights.”
In NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), the U.S. Supreme Court held that unionized employees have the right to request that a union representative be present in an interview that the employee reasonably believes will result in disciplinary action. An employer’s failure to honor a protected employee’s Weingarten rights can be found to have interfered with the exercise of the employee’s Section 7 rights under the National Labor Relations Act. Weingarten does not currently apply to non-union employees, see Praxair Distrib., Inc., 358 N.L.R.B. No. 7 (Feb. 21, 2012), though it has in the past, see Epilepsy Found. of

N.E. Ohio, 331 N.L.R.B. 92 (2000), and may again in the future.

Protected Concerted Activity.
Employers should also be aware that the National Labor Relations Act prohibits interrogations of employees on their protected concerted activities, subject to an exception requiring the employer to give the employee warnings regarding the employee’s rights and assurances that no retaliation will occur as a result of the interrogation. See Johnnie’s Poultry Co., 146 N.L.R.B. 770 (1964); Beverly Health & Rehabilitation Servs. v. NLRB, 297 F.3d 468 (6th Cir. 2002).

INVESTIGATING WRONGFUL EMPLOYEE CONDUCT AUDIT
Do you try to eliminate destructive employees in the hiring process? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA

Have you had any employment practices claims in the last three years (including, but not limited to, NLRB, Dept. of Labor, EEOC, FLSA, state agencies, mediations, arbitrations, administrative hearings, internal grievances and attorney demands)? . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
Past practices are good indications of present ones. Many times a company, after facing a claim, will not make the effort to find out what failure in their management system generated the claim in the first place. Unless we examine our losses, and address the variance in our system, we will continue to be faced with similar failures. As ancient wisdom has it, “lessons are repeated until they are learned.”

Are you currently aware of any possible employment practice claims?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
There is no time like the present time to deal with problems. Many employers make the mistake of ignoring, burying or denying their risk exposures. Remember, what employees want most is for you to a) acknowledge they have a complaint and b) make an effort to do something about it; so c) they can get back to doing their jobs.

Do you take advantage of the HR That Works
“hotline”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA

Do you have a policy for responding to inquiries from the press regarding employment practices claims? . . . . . . .Y N DK NA
Anything you say about an employee claim outside of your lawyer’s office, or in the course of settlement, can be and will be used against you. If you do not have a uniform policy for dealing with the media, we strongly suggest that you get some advice before saying anything.

Do you have a policy for the reporting of illegal or unethical activity? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
According to a recent article by the Wall Street Journal approximately 40 percent of employees would not report unethical conduct to upper level management. In a 1998 poll of 2,000 U.S. employees, 41% said they were aware of unethical or illegal behavior going on at the office! There is simply no substitute for educating employees about ethics and then demanding they speak up.

Has the CEO, President or owner of your company made it clear to your employees, in writing as well as verbally, that the company will not tolerate any form of harassment or discrimination or unethical conduct? . . . . . . . . .Y N DK NA
There is no substitute for sending a strong message from the top that harassment, discrimination, ethical violations, and other bad behavior simply will not be tolerated. We suggest a well-worded message from the president or CEO in the employee handbook, employee newsletter, annual report and other documents.

Do you have an Equal Employment Opportunity policy statement that is on your employment application and in your employee handbook? . . . . . . . . . . . . . . . . . . . . .Y N DK NA
Unless you are in a black-hole, you should have an EEOC Statement.

Do you have a written policy prohibiting sexual harassment and discrimination? . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
Again, if you do not have one of these policies please use ours. It is important that these policies offer an alternative line of communication from the traditional supervisor to supervisor routes. Your human resources department or a third party ombudsman is suggested.

Do you have a written procedure for conducting an investigation of any sexual harassment or discrimination complaints? . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
How you conduct an investigation goes a long way to satisfying employee concerns as well as those of the various agencies. Your investigation procedure should assure a prompt and through investigation. Your investigator should engage in dialogue, not preconceived beliefs.

Do you have a specifically designated employee(s) to handle sexual harassment and discrimination
complaints? . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA

As stated above, who is assigned to handle complaints is a risk management decision. Whether it is HR or another manager, that person should be trained in conflict resolution, dialogue and investigation procedures.

Does your investigation procedure include the following: Factual summary of the compliant? . . . . . . . . . .Y N DK NA Identification of persons interviewed? . . . . . . . .Y N DK NA Statements obtained under penalty of perjury? . .Y N DK NA Findings issued?. . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA Communication of findings to those
on a “need to know” basis?. . . . . . . . . . . . . . . . .Y N DK NA

Follow up and monitoring? . . . . . . . . . . . . . . . .Y N DK NA Personnel systems improvement? . . . . . . . . . . . .Y N DK NA

The listed items are basic requirements of a sound investigation process. As soon as you have a significant concern we strongly suggest that you call an employment law hotline or your attorney and get some advice. Courts look favorably on independent investigations conducted by professional investigators, human resources professionals or employment law attorneys.

Do you educate and train your employees on a regular basis regarding sexual harassment, discrimination
and hostile environment issues? . . . . . . . . . . . . .Y N DK NA

Showing your employees a 20-minute video once a year won’t get it. The issue of dealing with people who are “different than us” whether they are of an opposite sex, race, age or nationality has a significant impact on the ability to work as a team. Productivity figures as well as risk exposure is at stake. We suggest a continuous learning approach towards compliance and the ability to communicate and resolve conflict.

Have you inspected the workplace for inappropriate posters, calendars, jokes, or other items which could be looked upon as creating a discriminatory
or hostile environment? . . . . . . . . . . . . . . . . . . .Y N DK NA

Pinup calendars, racial jokes and derogatory e-mails are just some examples of conduct that can generate a “hostile environment claim”. While we are not necessarily fans of “cleansing the American workplace”, you do have to guard against materials that would be deemed offensive or harassing under anyone’s reasonable standard.

Do you regularly survey your workers regarding their understanding of, or exposure to, discrimination, sexual harassment and disability concerns? . . . . . . . . . .Y N DK NA
In 1998 the United States Supreme Court faced three employers arguing they should not be held responsible for conduct they knew nothing about. The reason they knew nothing about it was because of a thing known as the “culture of silence.” In order to protect against these claims, employers must make sure they have sufficiently educated their employees and then follow that by asking if they have been a victim of, or witness to, any of these violations.

Do you conduct any training regarding the issues of sexual harassment? . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
Sexual harassment continues to be a significant source of employee claims and non-productivity. When managers and employees are not educated in this area, they tend to make stupid mistakes that escalate into larger claims. The off-hand remark, the racy e-mail, the inappropriate dinner, are all types of actions that can be easily avoided through education.

Do you conduct any training regarding the issue of diversity/ discrimination? . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
What was just stated about sexual harassment applies here. The issue of teaching tolerance not only helps to avoid lawsuits, it also helps to make employees that much more productive. Educating on these issues must be considered a process. Again, please contact your attorney regarding in-house training, computer- based training and video-based training.

Do you conduct any training regarding the issue of age discrimination? . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
The battle between the ages is heating up in light of today’s new technologies. Very simply, Generation X’ers and Baby Boomers are going off in two separate directions. It will be a challenge for your organization to keep these forces in alignment. Not just to avoid compliance issues but for productivity purposes as well.

Do you have a uniform enforcement policy for employee discipline? . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
The word discipline is derived from a Latin word whose root meaning is “to learn”. The first question to ask when addressing employee conduct is “was the employee’s conduct self-induced or systemic in nature?” What lesson needs to be learned? According to Dr. W. Edwards Deming, nine out of ten employee failures are systems failures – not because the employee did not want to do a good job. If it is the employee, then you must get them to “own” their problems. The best way to correct behavior is for the employee to learn for himself or herself, under your guidance. If you do it for them they will never learn.

As ancient wisdom has it, lessons are repeated until they’re learned. Lastly, the punishment must fit the crime. One of the biggest problems we see facing managers is their uneven distribution of discipline. If particularly severe discipline is involved you may want to make sure that the human resource manager or another supervisor gives their feedback on the situation.

Do you use a standard employee warning form? Y N DK NA

Do you have a process which requires an employee to “own” their problems? . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
Depending on the nature of the offense it may be wise to give them leave without pay to really think about it.

Do you have a well-documented personnel file prior to terminating an employee? . . . . . . . . . . . . . . . . .Y N DK NA
Document, document, document is a phrase you continually hear from employment lawyers. Despite this sage advice, employer after employer finds itself defending a disciplinary action without proper documentation. Again, we suggest that you use the forms discussed above to help with this process.

Do you have a standard pre-termination procedure or checklist? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
Going through a sound employee termination process is just as important as going through a sound hiring process. Anytime there is a lack of uniformity you expose yourself to discrimination and wrongful discharge type claims.

Are all terminations independently reviewed
and approved? . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA

A number of lawsuits filed have been a direct result of a knee-jerk termination. Every termination decision should be independently reviewed by a human resource manager or other manager at the company to make sure emotions are not running high and that your termination process is being followed.

Have you corrected legal or management deficiencies brought to light by past employment claims?. . . . . . . . . . . .Y N DK NA
As ancient wisdom has it “lessons are repeated until learned”. We have seen many companies repeat the same failures because they failed to correct variances in their personnel systems. For example, it is our estimate that as many as half of all employment law claims are the result of a poor hiring decision. If the variances in your system are not corrected you will be subject to the same risk exposures on a repeated basis.

Do you have a written procedure for handling employee claims?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
Approximately half of all companies have a written procedure for handling employee claims. It is generally found in the employee handbook. If you have a procedure you should stick to it so as to avoid unequal treatment claims. If you don’t have a written policy you should at least have one person in charge who will go through a similar process every time.

Do you communicate to your employees your right to inspect desks, lockers, vehicles, bags, purses, etc.?. . . . . .Y N DK NA
The struggle over privacy versus protection in the workplace is one that will continue through the next millennium. The first line of protection is not to create an “expectation of privacy” where there should be none. Very simply, there is very little an employee should be doing during the workday that needs to be considered “private”. It is important to define for employees what areas are subject to search or inspection. You should communicate in your employee handbook the fact that you have the right to inspect desks, lockers, vehicles on premise, bags, purses, storage areas, etc.

Do you have a policy regarding voicemail, e-mail and internet usage which addresses privacy, confidentiality and harassment issues? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
Today’s new technologies have created new issues in this continuing debate of privacy versus protection. Of particular concern are voicemail, e-mail and the Internet. For example, statistics indicate that 70% of all pornographic internet usage occurs between the hours of 9 a.m. to 5 p.m.! This represents a significant exposure (no pun intended) to your company for claims such as sexual harassment. It also means that your employees may not be focused on what they should be.

Do you monitor any employee activities, including but not limited to, computer use, e-mail, phone calls, video surveillance etc.?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Y N DK NA
If you monitor employee’s activities you should let them know you are doing so. Explain to them what you are doing and why you are doing it. The “why” of it should certainly be a legitimate business objective. Employers who have gotten themselves in trouble in this area either don’t inform their employees or monitor for allegedly legitimate reasons that are outweighed by the right to privacy. The classic example is putting video surveillance in a locker area to prevent theft.

THAT’S IT! CONGRATULATIONS! You should have been able to answer all of the above questions with a “yes” or “not applicable”. A “don’t know” or “no” answer puts you at the risk of employee claims, or even worse, business failure.

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