eeo internal investigations: legal and practical guidance

EEO Internal Investigations: Legal and Practical Guidance for Employment Counsel

Planning and Conducting Effective Investigations ofpresents Planning and Conducting Effective Investigations of Discrimination, Retaliation and Harassment Claims

presents

A Live 90-Minute Teleconference/Webinar with Interactive Q&AToday's panel features:

Wayne E. Pinkstone, Partner, Fisher & Phillips, Radnor, Pa.Christopher J. Murphy, Partner, Saul Ewing, Philadelphia

Marcia Nelson Jackson, Partner, Wick Phillips, Dallas

Tuesday, April 6, 2010

The conference begins at:1 pm Easternp12 pm Central

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April 6 2010April 6, 2010

Marcia N. JacksonWick Phillips, LLP 3

A formal complaint or grievance.p g Casual reports or comments. Unexplained changes in behavior morale or Unexplained changes in behavior, morale, or

productivity. Theft suspicions or inventory losses Theft suspicions or inventory losses.


Suspicions of other misconduct.p Rumors. Administrative agency inquiry (e g EEOC Administrative agency inquiry (e.g., EEOC,

OSHA, DOL). Receipt of lawsuit Receipt of lawsuit.


Drug or alcohol use suspicions.g p Safety concerns, including workplace violence

or accidents. Harm to property or others.


1. Review, revise or establish clear policies on which all relevant employees are trained.

2. Designate and train appropriate “investigators.”


Initial Decisions Is an investigation necessary? Should any interim personnel action be taken

d hduring the investigation?


Advantages of resolving case informally – May limit/reduce:

Hard feelings Rumors Costs of litigation or administrative action

* Even informal resolutions should be documented.


What situations? Violence or harassment to employees, third parties

on Company propertyS lk Stalking

FraudWhi l bl i Whistle-blowing

Other


Possible Interim Personnel Actions: Leave of absence with or without pay Leave of absence with or without pay Suspension with or without pay Temporary transfer Temporary transferCommunications Regarding Removal From The

Workplace:p Whom to consult beforehand? Before or after confrontation? Make things better or worse? What to tell colleagues?


When can/should the investigation occur?Wh l ( ) h ? What law(s) govern the investigation?

What investigation techniques will be used—forensics, surveillance, email reviews, etc. , , ,

Who is the most appropriate investigator? Who are the witnesses?

h d h ld b ll d d d What documents should be collected, preserved and reviewed?

Who will decide what, if any, discipline will be Who will decide what, if any, discipline will be imposed?

How will the results and findings be documented?


Consider:◦ Skill level.◦ Relationships to any of the parties of the p y p

investigation.◦ If affiliated or relationship exists, investigator

h ld b d f bshould bow out to avoid perception of bias.


Look for an investigator who is:g Respected. Able to be assertive Able to be assertive. Understands the “big” picture.

K h C li i d d Knows the Company policies, procedures and applicable law(s).H d k ll Has good interviewing skills.


Can communicate verbally and in writing.Abili d l i h i Ability to develop rapport with witnesses.

Be non-confrontational.M b Maintain objectivity.

Makes a good witness.k h h Can take thorough notes.

Maintains confidentiality. Manages conflicts that arise from breach of

confidentiality.


◦ Human Resources◦ In-house Investigator ◦ Outside/Independent Party◦ In-house Counsel◦ Outside Counsel


When should an employer appoint an attorney to conduct an EEO internal investigation—and what special considerations arise from the attorney's i l t?involvement?

Consider: Privilege issues Privilege issues Ability /desire to use results in subsequent

litigationt gat o


Complainant Witnesses identified by complaint Alleged wrongdoer Witness identified by alleged wrongdoer Witnesses identified by investigator

d f d b C Witnesses identified by Company


Discrimination claims: Race Religion Gender/Sexual Harassment National Origin

A Age Physical or Mental Disability


Unjust Treatment: Promotion Discipline Compensation Assignments

k Work Worksite


Violence in the workplace Fraud/Theft Retaliation Wage and hour violations Other violations of law or Company policy


Employee handbook HR policies and practices Benefits booklets Ethics guidelines Finance guidelines

S d l Security guidelines Emails

P l fil Personnel files Medical/other files


The investigation should commence and conclude “promptly.”

No definitive interpretation of “prompt” has d f h i ibl iemerged from the courts, nor is one possible given

the variables that impact each investigation, such as the number and availability of witnesses theas the number and availability of witnesses, the length of time the complainant takes to recount the wrongdoing alleged, and the complexity of corrective action required in response.


However, investigations started the day of an employee’s complaint have been found to be timely, as have some that have commenced a few d ithi k ft th i iti l l i tdays or within a week after the initial complaint. Employers who wait more than a week to investigate may be asking for trouble.investigate may be asking for trouble.


Send complaint confirmation letterl d h Nail down the issues

Assure due process R ffi fid ti lit d ti Reaffirm confidentiality and cooperation Send personnel action notice, if necessary◦ Outline issues under investigationg◦ Pay status and expected duration◦ Assure due process

Consider drafting formal/standard opening/closing Consider drafting formal/standard opening/closing remarks for interviews

Consider pros/cons of written witness statements


Promptness Confidentiality Thoroughness Fairness Ultimate result

Add h Address the issue End inappropriate behavior


Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

EEO Internal Investigations:EEO Internal Investigations:

Legal and Practical gGuidance for Employment

CounselCounsel

Presented by:Presented by:

Wayne E. Pinkstone

Atlanta · Charlotte · Chicago · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las VegasNew Jersey · New Orleans · Orlando · Philadelphia · Portland · San Diego · San Francisco · Tampa

www.laborlawyers.com

11

Conducting the Investigation - Overview

• How to Investigate

• Analyze the Information

• The File, Follow-up andThe File, Follow up and Summary


www.laborlawyers.com22

How To InvestigateHow To Investigate…



Where To Begin?• Respond to complainant

Evaluate scope of investigation• Evaluate scope of investigation

• Evaluate time sensitivity

• Secure physical evidence

• Determine if immediate “ t ti ” i i d“protection” is required

• Consider objectives

• Consider written questionnaire



Respond To Complainant• Begin “on the right foot”

Thank complainant– Thank complainant

• Explain basic process

Document initial conversation• Document initial conversation

– Written statement

Si t– Signature

• Promise to begin investigation soon

P i ( d d li ) i l• Promise (and deliver) timely response



Evaluate Scope• What are the Allegations?

Who is the alleged wrongdoer?• Who is the alleged wrongdoer?

• Who are potential witnesses?

• What information is needed?

• How can information be collected?

• Do I need help?

– HR or Legalg



Evaluate Scope

• Formulate a plan

– Be prepared to be flexible th f t d las the facts develop

• Know that your investigation and results could beand results could be scrutinized and challenged



Initial Steps

Identify collect and review documents• Identify, collect, and review documents

– Handbook, compliance manual, annual integrity letter, personnel files prior discipline email timecards etcpersonnel files, prior discipline, email, timecards, etc.

• Create a timeline

F ll ti d i ti ti– For allegations and investigation

• Identify persons to be interviewed and appropriate order

• Consider involving security, risk, legal, or law enforcement



Initial Evaluation• What is alleged to have happened?

When is it alleged to have happened?• When is it alleged to have happened?

• Could it have happened according to the documents you have reviewed or information your received?have reviewed or information your received?

– Avoid pre-conceived conclusions: objectivity is critical

C id Att Cli t P i il i• Consider Attorney-Client Privilege issues



Your Work Is Discoverable In Litigation

• Remember, all the documents you create or yreview in your written and oral communications are discoverablediscoverable

• Your thoughts, opinions, and communications mayand communications may be “on display”

• Is that Good or Bad?



Identify Those Persons To Be Interviewed

• The Complainant

• The Wrongdoer• The Wrongdoer

• Eyewitnesses

Co workers who have been informed about the• Co-workers who have been informed about the incident(s) – compare versions of the complaint

• Non-employeesp y

• Other possible “victims”

• Consider interview orderConsider interview order

• Consider representation requests



Request for Representation

• If employee reasonably believes meeting could result inIf employee reasonably believes meeting could result in discipline and if employee requests representation

– request must be reasonableq

• If union contract requires



The Interview Process Generally• Prepare an outline of your questions

Prepare preliminary statement as to reason for interview• Prepare preliminary statement as to reason for interview, honesty, confidentiality, etc.

• Determine if you will take statements• Determine if you will take statements

– Be prepared to change your mind

C fi ti d t d l ti• Confirm times, dates, and locations

• Remain objective



The Interview Process Generally• Introduce yourself!

Establish rapport!• Establish rapport!

• Start slowly with background questions to put interviewee at easeinterviewee at ease

• Go from broad questions (seen any inappropriate conduct) to more narrow (ever seen inappropriateconduct) to more narrow (ever seen inappropriate conduct by wrongdoer directed at Jane)

• Save tough, unfriendly, or embarrassing questions until g , y, g qthe end



Questions• Simple

Not leading• Not leading

• Open-ended vs. closed-endedended

• Learn who, what, when, where, why, and howwhere, why, and how

• Determine who else

Determine what else• Determine what else



Listen Carefully

• Consider everything said and not said

• Don’t look for facts to support a conclusion

• Repeat to clarify

• Do not accept generalized statements or labels

– Get specifics

• Follow up where necessary



Understand The Interviewee• Consider your gut feelings and instincts

Evaluate body language• Evaluate body language

• Consider interviewee’s motives

• Consider interviewee’s relationship with key players

• Assess interviewee’s ability to remember events

• Assess willingness to cooperate

• Assess attitude toward Company, parties and p y, pinvestigation



Take Notes• Write facts and observations, not conclusions

Reflect what you see and hear• Reflect what you see and hear

• Document date, time, location and type of interview

• Use exact quotes when possible

• Remember, notes are discoverable

• Do not exaggerate or speculate

• Do not email notes



Facts Not Conclusions• Don’t write “Sam always puts women down”

Write “Jane stated that Sam told her all women should• Write “Jane stated that Sam told her all women should be at home, barefoot and pregnant”

• Don’t write “Sam harassed her”• Don t write Sam harassed her

• Write “Jane said Sam asked her for a date numerous times even though she said ‘no’ each time. Jane saidtimes even though she said no each time. Jane said Sam rubbed against her when she was making copies.”



Closing The Interview• Ask interviewee if she/he thinks there is anything else

you should know or should talk abouty

• Discuss the written statement and having it signed

• Tell interviewee to contact you if they think of anything• Tell interviewee to contact you if they think of anything else

• Remind interviewee of confidentiality obligationRemind interviewee of confidentiality obligation



Interviewing The Complainant• Thank for coming forward

Assure that company takes matter seriously• Assure that company takes matter seriously

• Remind about no retaliation policy

• Require truthful and complete information



Interviewing The Complainant• Require confidentiality

Require preservation of documents emails etc• Require preservation of documents, emails, etc.

• Encourage to come forward with additional information

• Provide general timetable for concluding investigation and responding



Interviewing The ComplainantDO NOT:

Promise a particular outcome• Promise a particular outcome

• Promise “absolute” confidentiality

• Promise to refrain from doing anything

• Use words like “harassment” “hostile environment” or “ i ti ”“victim”

– try “policy violation” “inappropriate conduct” “misconduct” or “concern”misconduct or concern



Interviewing The Complainant• The 5 W’s

• Was work affected?• Was work affected?

• Any written records (journals, diaries, etc.)?(j )

• Any other facts or information?

• Complained to anyone else in company?

Wh t did d i ht• What did you do right after ______ happened?



Interviewing The ComplainantInitial interview “Don’ts”

• Don’t accept labels and conclusory statements• Don t accept labels and conclusory statements

– “Sam creates a hostile environment”

Don’t accept characterizations of conduct• Don t accept characterizations of conduct

– “inappropriate conduct”, “offensive touching”

D ’t t thi l th f ll d i ti f• Don’t accept anything less than a full description of exactly what happened

• Don’t take sidesDon t take sides

• Don’t predict the outcome



Interviewing The ComplainantAfter interviewing the complainant you should have:

• A complete list of complaints issues and concernsA complete list of complaints, issues and concerns and documents in his/her possession

• Dates and times

• Witness names, if any

• All relevant “supporting” facts• All relevant supporting facts

• Complainant’s suggestions for resolution

A i d itt t t t• A signed written statement



Interviewing The Wrongdoer

• Prepare summary of eachPrepare summary of each allegation

• Prepare question outlinep q

• Expect denials

• Expect complainant’s credibility• Expect complainant s credibility questioned




• Thank for coming in

• Purpose of meeting

– To investigate concern raised

• Explain seriousness of matter and complainant’s right to complain

• Commit to impartiality

• Don’t show documents or notes (generally)




• Require confidentiality

• Remind about no retaliation policy

• Require truthfulness and cooperation

• Prohibit obstruction or interference with investigation

• Explain no decision made and investigation ongoingExplain no decision made and investigation ongoing



Interviewing The Wrongdoer• Begin with employment background

Q estion abo t the complainant recent discipline prior• Question about the complainant – recent discipline, prior complaints, any reason to lie?

• Address specific allegations and obtain admission or denial ofAddress specific allegations and obtain admission or denial of each

• Ask tough, potentially embarrassing questions at the end

• Determine complainant’s role, if any, in any misconduct

• Consider a written statement

• Consider need to re-interview complainant



Witness Interviews Generally• Choose a comfortable

environmente o e

• No group interviews

Provide adequate time• Provide adequate time

• Document consistently



Witness Interviews GenerallyDO NOT:

Interview anyone as a witness unless you have reason• Interview anyone as a witness unless you have reason to believe that they have info

• Allow witnesses to record the interview• Allow witnesses to record the interview

• Tell witness what other witnesses have said

T t di t t• Try to predict outcome

• Share your preliminary conclusions

• Share notes/documents/anything



Witness Interviews Generally• Be Prepared

• Outline questions• Outline questions

• Anticipate questions

Am I in trouble?– Am I in trouble?

– What will you do with information?

I it fid ti l?– Is it confidential?

– Will anyone know what I told you?

Wh i i i ?– What are you investigating?

– Will I get someone in trouble?



Witness Interviews Generally• Stress that no

conclusions have been reached

• Stress no retaliation policy

• Stress need to maintain fid ti litconfidentiality

• Keep opinions to yourself



Witness Interviews Generally• Explain reason for meeting

Explain seriousness of investigation• Explain seriousness of investigation

• Stress importance of accurate and truthful information

• Obtain first hand information

• Promise confidentiality but only to extent possible

• False or incomplete information or any other attempt to influence outcome grounds for discipline



Witness Interviews Generally• Start with background questions

Ask broad questions about the work environment before• Ask broad questions about the work environment before moving to specific alleged incidents

• Don’t ask leading questions until very end• Don t ask leading questions until very end

• Save tough, unfriendly or embarrassing questions until the endthe end

• Consider written statements



Analyzing The Information• Was the claim raised in a timely

manner? If not, why not?, y

• Why would the complainant fabricate?

• Any untruths uncovered?

• Do any involved have a history ofDo any involved have a history of problems?

• Can you reach a conclusion?y



Analyzing The Information• Did wrongdoer unequivocally deny allegations, or say “I

don’t recall that?”

• Were allegations corroborated? Were they neutral or biased?

• Were witnesses credible?

• Does complainant have any bias?Does complainant have any bias?

• Was complainant’s story consistent?

What was complainant’s role?• What was complainant s role?



Follow-up Meeting With Complainant

• Consult with decision makers (and possibly legal counsel) first)

• Provide preliminary results of investigation

• Seek response and any additional information• Seek response and any additional information

• Describe conduct confirmed without labels

R t “ i l ti f li ” if• Report “violation of company policy” if necessary



I Have No Idea!• Notify wrongdoer then complainant of conclusion

Reaffirm seriousness of complaint and review applicable• Reaffirm seriousness of complaint and review applicable policies, including no retaliation policy, with wrongdoer

• Inform complainant that wrongdoer reminded of policy• Inform complainant that wrongdoer reminded of policy

• Encourage complainant to raise any further concerns



It’s True!• Impose appropriate discipline on

wrongdoerwrongdoer

–What has Company done in the past?p

–What does Company policy require?

• Follow up with complainant to ensure conduct stopped

• Follow up to ensure no retaliation



The Investigative File• Complaint and written statements

Copies of documents reviewed• Copies of documents reviewed

• Copies of correspondence to complainant and wrongdoer (memos)wrongdoer (memos)

• Company communications related to complaint and investigation except attorney relatedinvestigation except attorney related

• Mark confidential

Summary Memo• Summary Memo



Not For Investigative File• Communications with legal counsel

Drafts• Drafts

• “To-do lists” for the investigation

• Subjective impressions or editorial comments

• Written seminar materials, checklists, or other articles on h t d t i ti tihow to conduct an investigation



The Summary Memo• Describe chronology

List interviewees• List interviewees

• List items/documents reviewed

• State factual conclusion

• Be brief



Th k YThank You

Wayne E. Pinkstone

www.laborlawyers.com



EEO Internal Investigations:L l d P ti l G idLegal and Practical Guidance

for Employment Counselp y

Presented by: Christopher J. Murphy, Esquire

April 6, 2010

Section III: Post-Investigation StrategiesStrategies

• Consider or reconsider interim personnel actions (see relevant slidespersonnel actions (see relevant slides, supra)

2

S ti III P t I ti tiSection III: Post-Investigation Strategiesg

A. Documenting The Investigation (seerelevant slides supra)relevant slides, supra).-Three objectives for investigation:

1. Remedial2. Litigation-focusedt gat o ocused3. Combination

3


• Consistent with policy(ies), level of documentation should reflect investigation objectivesshould reflect investigation objectives.

• Examples:Remedial: Long-term female employee complainsRemedial: Long term female employee complains that new male employee is using inappropriate, sexually-suggestive language.Level of Documentation: Simple and direct. Directed at ending the conduct complained of.

4


Litigation-focused: Female employee with checkered employment record abruptly leaves work and then p y p yfaxes in a doctor’s note describing her “acute emotional distress caused by sexual harassment in the workplace.”pLevel of Documentation: Comprehensive. Consider seeking witness statements. Consider interview with complainant (with or without counsel). Draft allcomplainant (with or without counsel). Draft all documents with an eye toward litigation. Consider having counsel (inside or outside) review “draft” documentsdocuments.

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Combination: Same facts as previous example, but female employee remains at work, while identifying her direct supervisor as the principal harasser.e d ec supe so as e p c pa a asse

Level of Documentation: Same as above.

6

Section III: Post-Investigation StrategiesStrategies

B. Evaluating The Evidence Obtained.The Basics:The Basics:

• Did everyone cooperate?• If not, what is the result of non-,

cooperation?• Alleged victim• Alleged harasser• Witnesses

7


• Did everyone tell the truth:• Determining Credibility - -g y

If there are conflicting stories, do not automatically conclude that you will be unable to make any

ifi d t i ti Th l dspecific determinations. The employer can and should weigh each party’s credibility. Credibility assessments can be critical in determining whether the alleged misconduct has in fact occurred.

8


Factors to consider in judging credibility include:

• Are the stories believable on their face? Do they make• Are the stories believable on their face? Do they make sense?

• What was the person’s demeanor during the interview? Did s/he appear to be lying or telling the truth?

• Did the person have a reason or motive to lie?• Corroboration is key in investigations, when you can get it.

Do witness statements or evidence corroborate any party’s account?account?

• The past record of each party. Does the accused have a prior record or history of misconduct? Does the complainant have a history or pattern of making false or inaccurate accusations?accusations?

9


Wh d h d h ?• What do the documents show?• What does Company Policy provide?• What is the “Burden of Proof”?• Do the credible facts show a violation of

C ?Company policy?• And, what if they do not or are inconclusive?

10


C. Determining Remedial ActionTh i ti ti di l d i l ti-The investigation disclosed a violation

of Company policy.What is your legal obligation?

“Prompt and adequate remedial action”“Prompt and effective remedial action”

11


“An effective remedy - - one that stops the harassment is adequate per se ” Knabe vharassment - - is adequate per se. Knabe v. Boury Corp., 114 F.3d 407, 411-12 n.8 (3d Cir. 1997).Cir. 1997).Even if not effective, a remedy is adequate if “reasonably calculated to end the yharassment.” Id. at 412-13.“Discipline” is not required. Id. at 413.p q

12


What does this mean?Bottom Line: Remedy intended to stop theBottom Line: Remedy intended to stop the conduct complained of.Considerations:

Victim perspectiveHarasser perspectiveLevel of credited misconductLevel of credited misconductHistory/Precedent – organization-wide, these actors.

13


Guidelines:

“L t th i h t fit th i ”“Let the punishment fit the crime.”

Communicate and document the remedy with the yharasser.

Inform the complainant that the investigation is p gcomplete and (at least) that a violation of policy was found and a remedy has been implemented.

14


• The investigation did not disclose a violation of Company policyof Company policy

Two scenarios:

The investigation was inconclusive;The complained of conduct did not occur.

No legal obligation to take remedial action.

15


Best Practice – Scenario #1- Review process and “inconclusive” conclusion with complainant and alleged harasser; Reaffirm p g ;commitment to EEO policies and no retaliation; Review applicable policies; Document process in personnel filespersonnel files.

16


Best Practice - Scenario #2- Review process with alleged harasser and advise of exoneration; Review EEO polices and commitments; Document process in personnel filecommitments; Document process in personnel file.- Review process with complainant; Review EEO policies and commitments; Document in personnel file. If complaint is patently false or made for bad motive, consider disciplinary action against complainant.complainant.

17

Section IV: Litigation Considerations

A. Privilege Issues: Protecting the Investigation FileInvestigation File.

18


FLASH - - Stengart v. Loving Care Agency, Inc.

On March 30, 2010, the New Jersey Supreme Court decided this case, holding that state common privacy law protected certain employee e-mails from review by the employer. Specifically, the Court considered whether plaintiff (a former employee of the employer) had a reasonablewhether plaintiff (a former employee of the employer) had a reasonable expectation of privacy in e-mails she exchanged with her attorney while still employed; she sent the disputed e-mails using her web-based personal email account on her employer-issued computer. In litigation, the company retrieved the e-mails from the computer system and

tt t d t th i th liti ti Th C t d ith thattempted to use them in the litigation. The Court agreed with the Plaintiff that the employer could neither review the e-mails nor use them in litigation because they were private.

19


The employer had published an electronic communications policy, which stated it could review any material on its computer systems at any timeany material on its computer systems at any time, and that e-mails were not considered personal or private. The Court considered the policy to be "boilerplate" and interpreted its ambiguities againstboilerplate and interpreted its ambiguities against the employer. The Court found the language of the policy relating to monitoring to be insufficient because the policy did not specifically inform employeesthe policy did not specifically inform employees that employees’ private web-based e-mails were stored and could be retrieved and reviewed.

20


Implications for employers –1. Employers seeking to establish the right to review e-mails sent on private web-based accounts will need to provide employees with detailed, specific notice of the intent to monitor such communications. Even this may not be enough given the Court’s suggestion that employees’ expectation of privacy in

h il t b b f l d fti I thsuch e-mails may not be overcome by careful drafting. In other words, although the Court specifically addressed the privacy of e-mails exchanged with an attorney, the decision may have a broader impact on an employer’s right to store and reviewbroader impact on an employer s right to store and review personal e-mails sent by employees through their personal e-mail accounts.

21


Background on the Attorney-Client Privilege and Attorney Work Product Doctrine

The Attorney Client PrivilegeThe Attorney-Client Privilege

• “Oldest confidential communications privilege known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

• Protects confidential communications made by clients, including corporate clients, to their attorneys in order to obtain legalincluding corporate clients, to their attorneys in order to obtain legal assistance and advice.

• Courts have struggled with determining whether an attorney is acting in his or her “legal capacity” when conducting a workplace investigation.his or her legal capacity when conducting a workplace investigation.

22

Section IV: Litigation ConsiderationsBackground on the Attorney-Client Privilege and Attorney Work Product Doctrine

The Attorney Work Product DoctrineThe Attorney Work Product Doctrine

• First articulated in Hickman v. Taylor, 829 U.S. 495 (1947).

• Later codified into Fed.R.Civ.P. 26(b)(3). Rule 26(b)(3) shields from disclosure attorney work product prepared “in anticipation of litigation,” absent a showing of “substantial need” for the materials and “undue hardship” in obtaining equivalent materials by other means.

• Attorney work product is tangible material or its intangible equivalent – in unwritten or oral form – that was either prepared by or for a lawyer or prepared for litigation, either planned or in progress. Black’s Law Dictionary 772 (2d Pocket ed. 2001).

23


CApplication in Employment Discrimination Cases

• An employer may waive the attorney-client privilege and/or work product protections in such cases by asserting that it either took reasonable measures to prevent and correct the situation or that the employee unreasonably failed to take advantage of these measures. Brownwell v. Roadway Package Sys., Inc. 185 F.R.D.19 (N.D.N.Y. 1999).

• The Court found that the employer was attempting to use the privilege as both a sword and shield. The employer implicitly waived the attorney-client privilege by placing the investigation at issue.

24


A N t R di EPLI CA Note Regarding EPLI Cases

• There is no insured-insurer privilege protecting communications between an insured and its liability or indemnitycommunications between an insured and its liability or indemnity insurer.

• Two views as to the application of the attorney-client privilege to communications between an insured and its insurer: the broad view and the narrow view.

25


• Broad view - - an insured’s communication to its liability or indemnity insurer as to incident possibly giving rise to liability covered by the policy is protected from disclosure by the attorney-client privilege because such communications areattorney-client privilege, because such communications are made for the dominant purpose of transmission to an insurer-assigned attorney for defense of the claim.

S f C• States following this view: Colorado, Delaware, Florida, Illinois, Kentucky, Missouri, Nebraska, New York, Ohio, Texas and Washington.

26


Background on the Attorney-Client Privilege and Attorney WorkProduct Doctrine

• Narrow view no per se attorney client privilege in• Narrow view - - no per se attorney-client privilege in insured-insurer communications, since the attorney’s sole loyalty and duty is owed to the client (i.e., thesole loyalty and duty is owed to the client (i.e., the insured), not the insurer.

• Work product doctrine may protect these materials.

27

S ti IV Liti ti C id tiSection IV: Litigation Considerations

Self-Critical Analysis PrivilegeSelf-Critical Analysis Privilege

• Arose as a theory to prevent or limit• Arose as a theory to prevent or limit disclosure of potentially damaging information uncovered as a result of an internaluncovered as a result of an internal evaluation or analysis. This doctrine has not been widely accepted and is not absolute. y p

28


Practical Tips to Preserve Privilege

• Label all confidential attorney-client or work productLabel all confidential attorney client or work product communications.

• Maintain confidentiality by limiting the scope of e-• Maintain confidentiality by limiting the scope of e-mail strings. The privilege may be waived when confidential individual e-mails are included as part of e-mail strings that are widely disseminated. At g yminimum, the e-mails should contain an explicit subject line designation such as “Privileged Attorney-Client Material-DO NOT FORWARD.”

29


3. When attorney-client communications refer to specific data, make sure the data is readily available elsewhere. Some courts will decline to apply the privilege when the confidential attorneyapply the privilege when the confidential attorney-client communications are the only source of underlying factual data. To maintain the privilege, ensure that alternate sources of such data areensure that alternate sources of such data are available.

30


Practical Tips to Preserve Privilege

4. Be prepared to waive the privilege if you want to use the i ti ti ffi ti d f Cl i i th t “investigation as an affirmative defense. Claiming that “we conducted a thorough internal investigation” as a defense to a hostile environment sexual harassment claim typically waives the privilege. On the other hand, by yp y p g , yclaiming “we took actions x, y and z” in response to a complaint, an employer may be able to raise the prompt-and-appropriate remedial action defense without waiting the privilege. Consider your willingness to waive the p g y gprivilege as you set forth your defenses. In addition, if you later plan to rely on an investigation should any claim arise, do not have an attorney conduct the investigation.

31

S ti IV Liti ti C id tiSection IV: Litigation ConsiderationsPractical Tips to Preserve Privilege

• Avoid placing an attorney in a decision-making role. Employment decisions must be made by the employer, not the attorneys offering legal advice. Make sure that there is a non-attorney who is the d i i k d b d i t d h h ld liti tidecision-maker and can be designated as such should litigation arise.

6. Decide up front, and take precautions, if an attorney will be a p , p , ywitness. Sometimes, an attorney may be the best witness. But this decision should be made at the outset of a matter, with a view toward potential disclosure and testimony, rather than as a result of an order compelling disclosure. And consider that a testifying attorney will likely be disqualified from representing his or her clientattorney will likely be disqualified from representing his or her client at trial.

7. Consider performing a “dual investigation.”

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Section IV: Litigation ConsiderationsB. Preemptive Settlement or Early ADR• In an appropriate case, consider initiating early settlement

discussions or suggesting pre-complaint ADR (i.e., gg g (mediation).

• Rationale - -

– Avoid costs/risks of litigation.– Prevent potential plaintiff from becoming “locked in” on a

demand.demand. – Educate plaintiff regarding employer’s valuation of dispute.– Useful opportunity to learn the details of plaintiff’s claim,

including any “warts” in the employer’s case.

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CONTACT INFORMATION

Christopher J. Murphy, Esquire15th and Market StreetsCentre Square West, 38th FloorPhiladelphia, PA 19102Phone: 215.972.7140Fax: 215.972.2294Email: [email protected]

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Saul Ewing’s Office LocationsBaltimore, MarylandLockwood Place500 East Pratt Street Suite 900

New York, New York245 Park Avenue, 24th FloorNew York NY 10167500 East Pratt Street, Suite 900

Baltimore, MD 21202410.332.8600fax: 410.332.8862

Chesterbrook, Pennsylvania

New York, NY 10167212.672.1995Fax: 212.372.8798

Philadelphia, PennsylvaniaCentre Square West1500 Market Street 38th Floor

1200 Liberty Ridge Drive, Suite 200Wayne, PA 19087-5569610.251.5050fax: 610.651.5930

H i b P l i

1500 Market Street, 38th FloorPhiladelphia, PA 19102-2186215.972.7777fax: 215.972.7725

Princeton, New Jersey750 College Road East

Harrisburg, PennsylvaniaPenn National Insurance TowerTwo North Second Street, 7th FloorHarrisburg, PA 17101-1604717.257.7500fax: 717 238 4622

Princeton, NJ 08540609.452.3100fax: 609.452.3122

Wilmington, Delaware222 Delaware Avenue, Suite 1200Wilmington DE 19801 1611fax: 717.238.4622

Newark, New JerseyOne Riverfront PlazaNewark, NJ 07102973.286.6700

Wilmington, DE 19801-1611302.421.6800fax: 302.421.6813

Washington, D.C.2600 Virginia Avenue, N.W.Suite 1000 | The Watergate

fax: 973.286.6800| g

Washington, D.C. 20037202.333.8800fax: 202.337.6065

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eeo internal investigations: legal and practical guidance

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