conducting investigations ginger d. schroder, esq. schroder, joseph & associates, llp

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