conducting internal investigations-christine binotti, motorola solutions
TRANSCRIPT
Internal Investigations: Best Practices & Lessons Learned
Christine Binotti, Senior Compliance Counsel Motorola Solutions, Inc.
Chief Litigation Officer Summit
September 23, 2016
Christine Binotti, Senior Compliance Counsel
Internal Investigations: Best Practices & Lessons Learned
Agenda
• Why investigate?
• Commencing an investigation
• Conducting the investigation
• Concluding the investigation
• Evaluating the evidence and reaching a conclusion
• Corrective Actions
• Preserving your record
Why Investigate?
Why is it important to conduct an investigation?
Provides a defense
• Did the employer take reasonable care to prevent
the prohibited conduct?
• Did the employer take prompt corrective action?
Good Investigations Save You...
• Money
• Reputational Damage
• Staff effort, stress and distraction
• Reduction in employee morale
• Perpetuating bad behavior
Successful lawsuits lead to more lawsuits!
When to investigate?
• When is an investigation necessary?
• When information comes to light - from any
source - that relates to potential violations of
the law and/or company policies
• Can include formal complaints, ethics
line calls, and even office gossip
• Legal Obligations
• Practical Considerations
Investigation Goals
• What is the purpose of this investigation?
• Reveal the truth?
• Clear, defensible, well-documented resolution?
• Don’t forget the big picture
• Your obligation is to conduct a
thorough investigation and document
findings/corrective actions
Investigation Plan Checklist
✓ Who should do the investigation?
✓ What policies are implicated?
✓ Physical or written evidence to review
✓ Who should I interview, in what order, and
where?
✓ Interview preparation
✓ Conduct interviews
✓ Additional investigation work
✓ Did a violation occur? Remedial action?
✓ Documentation of findings
✓ Follow-up
The Investigator
• Who should conduct it?
• Consider time and resources
• Consider a third party to mitigate any perceived bias
• Investigator must be...
• Impartial
• Credible
• Thorough
• Discreet
• Effective as a potential witness in a trial
Know your Policies
• Who does our policy protect?
• Are employees aware of the policy?
• Where should violations be reported?
• Confidentiality obligations
• Consequences for violating a policy
• Retaliation
Gather the Evidence
• Complainant’s Personnel File
• Accused’s Personnel File
• Policies and Related Training
• Performance Management Documents
• Prior Investigation Notes & Reports
• Search Work Areas
• Documents retained by Supervisor(s)
• Other Physical Evidence
Conducting Interviews
• Who to interview
• Stick to the Facts
• Be Prepared & Take T-I-D-Y Notes
• Remember the Goal
• Remain Impartial
• Upjohn
Complainant Considerations
• Prepare an introduction for the interview
• “We take reports of wrongdoing very seriously. We will investigate thoroughly. We will keep this as confidential as possible and take appropriate action based on our findings. Retaliation is strictly prohibited.”
• Protect the Parties (Complainant and Company)
• Who else knows what happened?
• Has anyone else had a similar experience?
• Is there any physical evidence (i.e. notes, documents, etc.)?
• Has it affected your job performance?
• How would you like us to resolve this?
Assess the need for Interim Action
• Necessary to prevent further misconduct or retaliation
• Protect the Parties
• Complainant: Consider schedule changes, transfers, paid leaves (only if voluntary)
• Accused: Consider paid suspension or administrative leave (can be involuntary, but non-disciplinary)
• Maintain Confidentiality
Interviewing the Accused
• Prepare an introduction for the interview
• “The purpose of this interview is to ask you about allegations of workplace misconduct made against you.”
• Stress the importance of Confidentiality
• Ask for a general response to the allegations
• “This is your chance to tell your side of the story.”
• Only an investigation - Nothing will be decided until all information has been collected
• Warn against non-business contact with complainant
• Warn against retaliation
Interviewing Other Witnesses
• Stress importance of telling the truth
• Consider the questions
• Open-ended, factual questions
• What were they told by the complainant/accused?
• Other evidence or other witnesses?
• Confidentiality is required
• Warn against retaliation
• They are not entitled to follow-up information
Assess the Evidence
Is the evidence credible?
• Believable on it’s face
• Credibility of the original source
• Look for Inconsistencies
• Motive to Lie
• Corroboration/Supporting Evidence
• Past behavior
Are we done yet?
Additional investigation work:
• Circle back with complainant and accused
• Re-interview parties and witnesses about any new information
• Gather additional physical evidence
• Consult with legal counsel
• Organize notes and investigation file
• Summarize evidence
Reaching a Conclusion
Possible Investigation Outcomes:
1. Allegations Corroborated
2. Allegations Disproven
3. Investigation Inconclusive
Allegations Corroborated
● Inform Complainant & Accused
● Enact Corrective Measures
○ Stop misconduct
○ Ensure misconduct does not recur
○ Counter effects of misconduct on victim
Discipline Considerations
Discipline Should be:
✓ Swift
✓ Consistent
✓ A punitive warning & an expectation of future conduct
✓ Properly documented!
Allegations Disproven
• Inform Complainant & Accused
• Investigate potential underlying issues
• Provide assistance if necessary
• Consider Training
• Beware of retaliation claims!
Investigation Inconclusive
• Inform Complainant & Accused
• Ongoing monitoring
• Change reporting relationship
• Consider Training
How should I document my findings?
• Policy Provisions & Employee Acknowledgements
• Describe Original Complaint
• Describe Nature of Violation/Conduct
• Take T-I-D-Y Notes
• Summary of Evidence
• Investigation Findings and Conclusion
• Corrective Action Taken
• Follow-Up with Parties
• Post-Investigation Inquiries
Avoid Documentation Pitfalls
Q: What is the main cause of unfavorable litigation outcomes in
employment cases?
A: Lack of documentation
Ask yourself: Can I prove it if she denies it?
If not, do more!
Preserve your record! Keep records with HR or Legal and restrict access
Pulling It All Together
● Don’t forget the goals of the investigation
○ Reveal the truth
○ Lead to defensible, well-documented resolution of the complaint
● Be prepared and follow your plan - no improvisation!
● Follow-through and Follow-up
● If done right, company will have a solid basis for taking action and will stay out of court
Thank you!
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