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Protecting Your Workplace from Distracting and Expensive Claims with Sound Investigations
Last month, we provided some preemptive steps you can take to protect your workplace from expensive and distracting claims of discrimination.  To review those tips, click here.   
Now that you have educated your workforce on your expectations for lawful and productive performance, how can you ensure those expectations are met?  One important step is investigating when you determine that employee behavior is out of alignment with your expectations.  When a manager observes or hears about harassment or discrimination, and even when the conduct alleged is less serious, it is important the Company investigates promptly and thoroughly.  The benefits from investigating promptly and thoroughly may include (a) eliminating the harassment or discrimination or other misconduct; (b) avoiding a claim for failure to protect employees; (c) possibly creating an affirmative defense and/or mitigating compensatory damages and reducing the risk of punitive damages in the event of litigation; and (d) demonstrating to employees the Company's commitment to its policies against discrimination and other misconduct. 
In this Newsletter you will find the following tools and information you can use this month:
     •     How Can We Help?
Coming in our next issue, we begin creating a Sustainable Leaves of Absence system.
Ten Initial Steps to a Sound Investigation
Each investigation is unique, and requires its own response.  Here are some ideas for preparing for any sound investigation. 
1.     Accept a Complaint with Gratitude.  Remember, an individual is not required to complain to the Company in order to bring a claim for discrimination.  We also know that, for example, an estimated 95% of sexual harassment claims go unreported.  Even if the conduct about which a complaint is made does not rise to a violation of your policies or the law, you still have a problem in your workforce. The opportunity to investigate may reduce your risk of liability and increase productivity, and should be appreciated. 
2.     Be Prompt in Investigating.  While there is no exact guideline, the courts require that an investigation be initiated promptly.  The Equal Employment Opportunity Commission has suggested that an investigation should begin within 48 hours, although business needs also must be balanced. 
3.     Consider Whether Interim Measures are Necessary.  Is there an immediate need to separate the individuals involved in the complaint?  Does an alleged wrongdoer need to be placed on leave pending the investigation? 
4.     Review your Policies and the Law in Determining Whether and How to Investigate.  Does the complaint suggest a violation of either policy or law, and is an investigation required or warranted?  Some allegations, like sexual harassment, may create a duty to investigate and correct the action.  If your Company has a policy or procedure for investigating claims, be sure you follow it.  Be clear on what is required for a sound investigation, whether or not your policy includes the minimum requirements.  We have some tips on the actual investigation below. 
5.     Exercise Caution with Confidentiality.  Complainants may suggest "I am only telling you, I do not want anyone to know and I do not want this investigated."  This is not a promise you can make, particularly if the Company has a legal obligation to investigate the complaint.  Complainants should be told that the Company will keep the information as confidential as possible, but cannot promise absolute confidentiality.  If a complainant at that stage then refuses to participate in the investigation, the Company should note this, and must attempt to investigate with the information it has.  Be sure to also remind the participants in the investigation of their obligation to maintain the confidentiality of the investigation, and the consequences for their failure to do so.
6.     Identify Your Investigator.  Consider whether to conduct your investigation internally or externally.  Whether internal or external, the investigator should be unbiased, and have the experience necessary to perform a thorough investigation.  This may be an internal, trained, objective human resources professional or an outside investigator or attorney.  If you conduct internally, be sure you assign the task to an experienced person who is not accused of wrongdoing or a decision-maker in the matter.  
7.     Consider Where to Conduct Investigations.  The complainant should feel comfortable giving information, and all participants in the investigation should feel they can discuss issues without the scrutiny of third parties.  Identify a neutral office, conference room or outside location that affords privacy. 
8.     Gather Initial Information and Supporting Documents.  In your initial conversation with the complainant (or person bringing you information) learn the nature of the complaint, and as many initial details as you can, including the parties involved, the conduct, any witnesses to the conduct, any documents related to the conduct.  
9.     Develop an Initial List of Documents for Review.  Generally, you will want to review personnel files, voice mails, texts, e-mails (be sure your policies are clear that employees do not have any reasonable expectation of privacy in their e-mail or voice mail communications or computer usage).  If performance is at issue, you will also want to review performance evaluations. 
10.     Prepare an Initial Witness List.  This initially will be driven by the complainant's allegations, and may be expanded to include "rebuttal" witnesses identified by the alleged wrongdoer. 
Steps for Conducting an Investigation to Protect Your Workplace and Employees
You have followed the preliminary steps outlined above, and now it is time to conduct the investigation.  Again, each investigation will require a unique approach.  We have listed some key principles below.
1.     Interview the Complainant.  Your investigation typically will start with an interview of the complainant.  The nature of the questions you will ask here, very generally, will identify: Who committed the act (name and position)? What exactly occurred/was said? When did it occur? Where did it occur? How often did it occur? Who was present? How did the complainant respond? Did the complainant share the conduct with anyone or complain to anyone?  Has the complainant observed or heard about similar conduct?  Does the complainant have any documents to support the allegations?  Has the behavior affected the complainant's ability to perform the job?  Has it affected a tangible job benefit?  You may want to ask the complainant how he or she would you like to see the matter resolved, but be careful not to make any promises.
2.     Interview Witnesses and the Alleged Wrongdoer.  The conduct alleged will dictate whether you move directly to the alleged wrongdoer.  Your obligation is to provide the alleged wrongdoer with an understanding of the claims against him/her and with a reasonable opportunity to respond to the allegations.  That often is best achieved once all the allegations of misconduct are understood from both the complainant and the witnesses.  You may not need to interview all witnesses identified by the participants, but will want to be sure that you have engaged in as throrough a review as you need to understand fully the complaints and to provide the alleged wrongdoer with a meaningful opportunity to defend him/herself.  Be prepared: the list of witnesses may include current or former employees, and may include third parties. If you interview the alleged wrongdoer early in the investigation, be sure to circle back with any additionally alleged facts. 
3.    Additional Guidelines to Keep In Mind During the Interviews.  Listen to all participants with an open mind, and do not reach a conclusion until all the evidence is collected.  Ask open-ended questions.  Provide participants with an opportunity to clarify, expand or correct their testimony.  Listen for any bias on the part of a witness.  If another witness contradicts testimony, then provide the witness with the contradiction and afford an opportunity to explain.  Remind witnesses (including complainant and alleged wrondoer) of the limits to the Company's ability to promise confidentiality and of the participants' obligations to maintain confidentiality. 
4.     Prohibit RetaliationAll employees should be reminded that the Company prohibits retaliation against an employee who makes a good faith complaints or who participates in an investigation.  Employees should be encouraged to report any acts of retaliation. 
5.     Reach a Well-Reasoned Conclusion.  Your conclusion should demonstrably reflect that you made an objective determination based on your interviews with relevant witnesses and review of relevant documents.  Even in a situation of "he said - she said," a determination must be made and steps should be taken to reiterate the Company's policies and to ensure that this conduct does not occur again. 
6.     Take Prompt and Effective Remedial Action.  If the complaint is substantiated, the Company must take prompt and effective remedial action to eliminate the conduct, prevent future misconduct and to ensure there is no retaliation.  The response will be guided by the severity of the conduct, and may range from warning to termination. 
7.     Exercise Good Record-Keeping.   Be mindful that your investigation may come under scrutiny because the Company likely will rely on your conclusions to make personnel decisions.  Your notes, summary and any report you prepare should include the allegations, the witnesses with whom you spoke, the facts on which you relied, to whom the facts are attributed and any documents on which you relied to reach your conclusion.  Whether to prepare witness statements will depend upon the nature of your workforce and the investigation.  Prepare all documents close in time, when your memory is fresh.  Maintain your notes in a separate confidential file, away from the personnel files. 
8.     Circle Back to Participants.  We recommend that you advise the participants in writing that the investigation is concluded, that their obligations for confidentiality continue and that they are protected from retaliation.  In addition, the complainant and alleged wrongdoer should be advised in writing (a) whether the Company found misconduct to have occurred, (b) that the Company does not tolerate the conduct alleged; and (c) if misconduct is identified, that the Company has taken remedial action.  If misconduct is identified and remedial action is taken, that should be memorialized in the alleged wrongdoer's personnel file.  Be sure to visit with the complainant periodically thereafter to understand whether the concerns have been resolved. 
Your Turn: Take the Sustainable Workplace Quiz
Robin the Runner:
Responding to Allegations of Harassment
Robin reports to Bill.  Bill alerts Human Resources that for several months he has been asking Robin to report to work on a more timely basis.  He alleges she has resisted this instruction and is consistently late.  Bill has no documentation of his conversations.  Bill says he understands Robin is training for a marathon and is late because she runs in the mornings before work.   He proposes that Robin's employment be terminated. 
Human resources reviews the facts, and decides first to meet with Robin to remind her of the Company's attendance policies.  Robin admits she has been late to work, and claims that it is because she dreads coming to work with Bill.  She claims he recently has made comments that make her uncomfortable.  She alleges that Bill regularly makes comments on her physique. 
Specifically, Robin claims Bill asked if she is a runner, and when she confirmed, he said he could tell by her running watch and by the shape of her legs.  If she had no further allegations, would you investigate?  
What if instead she alleges Bill said he could tell because she has great legs, and that she should wear skirts more often to show them off?
What if Robin further alleges that at a department lunch, Bill reached over and squeezed her thigh and said "now these are the legs of a runner?"  She claims that Bill asked her to go for a run, and when she stated she only runs with her sweetheart, Bill began monitoring her attendance. 
What do you think are your next steps?
To see our thoughts and recommendations, click here
How Can We Help?
If you need help creating policies and practices that may ensure prompt and thorough investigation of the conduct that creates risk to your workplace, or if you would like assistance in investigation claims of misconduct in your workplace, give us a call at 619 906 2400 or send us an  e-mail.  We are happy to help.   
Keep an eye out for next month's newsletter, where we will share ideas for creating a Sustainable Leaves of Absence system. 

Schor Vogelzang & Chung LLP

Partnering to create your great workplace!

2170 Fourth Avenue, San Diego, CA 92101
P: 619.906.2400 F: 619.906.2401


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