what employers need to know about workplace investigations vanderpool, frostick & nishanian pc...

What Employers Need to Know about Workplace Investigations

Vanderpool, Frostick & Nishanian PC

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Presented by:Kristina Keech Spitler, Esq.

Prince William SHRM June 3, 2015

Copyright 2015 Kristina Keech Spitler All rights [email protected]

DISCLAIMER

This presentation and information is designed to provide general information, is not intended to constitute legal advice and should not be utilized as a substitute for professional services in specific situations. If legal advice or other expert assistance is required, the services of a professional should be sought.

2Copyright 2015 Kristina Keech Spitler. All rights reserved.

Kristina Keech Spitler, Esq.

Kristina Keech Spitler, Esq. is a shareholder with the law firm, Vanderpool, Frostick & Nishanian, P.C., where she represents and advises businesses on business and employment issues and litigation including representing employers in court, in mediation, and before administrative agencies such as EEOC, assisting clients comply with laws on such issues as discrimination, disabilities and accommodations, wage and hour, leave, hiring and firing , and discipline. In addition, her practice includes drafting and updating handbooks and policies, providing management and employee training, performing internal investigations, and counseling on matters relating to breach of agreements, non-competes and restrictive covenant agreements. Ms. Spitler is a highly rated speaker and trainer on employment law issues.

Ms. Spitler has been recognized as one of one of Virginia’s “Most Influential Women” by Virginia Lawyers Media and as one of Virginia’s “Legal Elite” in Labor/Employment Law by Virginia Business Magazine.

Contact Ms. Spitler at [email protected] or (703) 369-4738.


Duty to Investigate

Under Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), an employer can be held vicariously liable for the acts of its supervisors. However, employers have an affirmative defense where it can show that it exercised reasonable care to prevent and promptly correct any harassing behavior and the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.


Duty to Investigation

The employer must determine whether the alleged misconduct is related to or potentially related to discrimination based upon a protected status.

Fact finding investigation must be promptly instigated.


Duty to Investigate

• The employer still has a duty to investigate even if the complainant does not request action or requests that the employer take no action against the alleged harasser. Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1191 (9th Cir. Wash. 2005).

• The employer has a duty to investigate even if the complainant offers no specific details of the alleged harassment.


Duty to Investigate

Employers have a duty to investigate even if they do not have actual knowledge of harassment, as an employer can be liable if it should have known of the conduct and it failed to take immediate and corrective action.


Investigation


1. Ensure Harassment Stops

2. Select an Investigator

3. Conduct Interviews

4. Assess Credibility

5. Ensure Investigation is Complete

6. Make a Determination

Ensure Harassment Stops

The employer should inform both the complainant and the alleged harasser that it will take immediate and appropriate corrective action, including discipline.

If necessary, separate the parties:• Transfer the alleged harasser, change the alleged harasser’s

schedule, or place the alleged harasser on leave with pay.• Do NOT transfer the complainant, involuntarily change the

complainant’s schedule, or place the complainant on leave, or burden the complainant as these actions could be viewed as retaliation.


Select an Investigator

Ensure that the individual who conducts the investigation is objective. The alleged harasser should have no supervisory authority over the investigator or the investigation.

The investigator should be well trained in interviewing witnesses and determining their credibility. The Fourth Circuit has found an investigation to be inadequate in part because the investigator had never investigated a claim before. See Smith v. First Union Nat'l Bank, 202 F.3d 234, 245 (4th Cir. 2000).


Conduct Interviews

The interviewer should not offer his or her own opinion.

The interviewer should interview the complainant, third parties who may have relevant information, and the alleged harasser.

The interviewer should inform all parties that they will not be retaliated against in any way for participating in the investigation.

The interviewer should explore specific details of each event, nature of the relationship, the degree to which the behavior was unwelcome, and how long it continued.


Conduct Interviews

The interviewer should inform employees that the employer will work towards protecting the confidentiality of harassment allegations to the extent possible. The employer should keep this information confidential, and only share with persons on a need to know basis.

Employers should not have a “blanket” policy prohibiting employees from discussing workplace investigations, as the NLRB has found that this could “chill” employees’ Section 7 rights. Banner Health System, 358 N.L.R.B. No. 93 (July 30, 2012).


Conduct Interviews

The length of an investigation will depend on the circumstances surrounding each matter.

The investigator must focus on the circumstances surrounding the alleged harassment and ask necessary questions, as the Fourth Circuit has found an investigation to be insufficient where an investigator focused on the alleged harasser’s management style and not the alleged harassment, and the investigator failed to ask about the allegations of harassment.


Assess Credibility

Factors to consider include (none are determinative):• Inherent plausibility• Demeanor• Motive to falsify• Corroboration

• Is there witness testimony?• Is there physical evidence?

• Past record


Ensure Investigation Complete

Review documents.

Determine if additional interview necessary.

If witnesses are not interviewed, by able to identify the reason.

When an interviewee mentions a document, request a copy of the document/s.


Make a Determination

Make a determination if the actions alleged by the complainant took place based on the totality of the facts and circumstances.

If a determination cannot be reached, the employer should still take preventative actions such as monitoring and training.


Notify

Draft a memorandum or letter detailing investigation and determination.

Notify complainant and alleged harasser in writing of the determination and any actions being taken as a result.


Notify

Note that if the employer would like to take an adverse action in part based on a third-party consumer report (for example, criminal background or credit history), the employer must provide a the alleged harasser a summary of the report under the Fair Credit Reporting Act prior to taking any action.


Disciplinary Action

Disciplinary measures should be proportional to seriousness of the offense.

Possible discipline includes:• Oral or written reprimand• Transfer or reassignment• Demotion • Reduction of wages• Suspension• Discharge


Corrective Action

Employers should consider if it should take corrective action toward the complainant which may include:• Restoration of leave taken due to harassment• Expungment of negative evaluations• Reinstatement• Mandate the harasser apologize


Document Investigation

Keep all material in a file.

Do not put the investigation in the personnel file.

Document all corrective and disciplinary actions taken to provide as evidence in case of a claim of discrimination.


Document Investigation

File should contain:• Report• Witness statements • Interview notes• Reviewed documents• Disciplinary documentation


Defense

Again, under Faragher-Ellerth, employers may present an affirmative defense when an employee is subject to harassment that does not culminate in tangible employment action, if the employer exercised reasonable care to prevent and promptly correct harassment, and the employee unreasonably failed to take advantage of corrective opportunities offered by the employer.


Evidence

The employer may use the report in its defense, but the report may also be subject to discovery during litigation.

Courts may preclude the use by the employer of a workplace investigation if the investigation was performed internally and appears one sided as opposed to an investigation by a neutral party. See Castelluccio v. IBM, 2013 WL 6842895 (D. Conn. Dec. 23, 2013).

Employers may use the workplace investigation as an affirmative defense in litigation and before the EEOC.


CONTACT INFORMATION

Kristina Keech Spitler, Esq.

Vanderpool, Frostick & Nishanian, PC.

9200 Church Street

Suite 400

Manassas, Virginia 20110

(703) 369-4738

(703) 369-3653 (fax)

[email protected]

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Copyright 2015 Kristina Keech Spitler All rights reserved

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