Know What You Did Last Summer: Workplace Investigations (Series: HR, Talent Management & Employment Law Boot Camp)

Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™
Receive our free weekly newsletter at www.financialpoise.com/subscribe
Insert the cover image for this webinar on this slide entirely
1

Practical and entertaining education for
attorneys, accountants, business owners
and executives, and investors.
2

DISCLAIMER
The material in this webinar is for informational purposes only. It should not be
considered legal, financial or other professional advice. You should consult with an
attorney or other appropriate professional to determine what may be best for your
individual needs. While Financial Poise™ takes reasonable steps to ensure the information
it publishes is accurate, Financial Poise™ makes no guaranty in this regard.
About this PowerPoint: if you are looking at this PowerPoint without the benefit of
listening to the conversation that surrounded it then you are doing yourself a disservice.
This PowerPoint was prepared in contemplation of being viewed in conjunction with
listening to a one hour webinar on the topic
3

MEET THE FACULTY
Moderator:
Charles Krugel – Law Offices of Charles Krugel
Panelists:
Gary Savine – Savine Employment Law, Ltd.
Ruth Rauls – Saul Ewing Arstein & Lehr LLP
Jason Klimpl – Tannenbaum Helpern Syracuse & Hirschtritt LLP
Emily Fess – Rush University Medical Center
4

ABOUT THIS WEBINAR: Know What You
Did Last Summer: Workplace Investigations
Now, more than ever, employers must be prepared to promptly and effectively respond to
complaints of workplace harassment and/or discrimination. Often, that requires knowing when and
how to conduct an internal investigation. Given the significance of the issues often at stake and the
potential for a negative outcome (attorneys’ fees, high dollar settlement, negative PR), learning on
the fly is not a viable option when undertaking an investigation. This program covers a host of
questions, including what sort of issues should be investigated, who should conduct the
investigation, what steps should you take and in what order, who should be interviewed, what sort
of documents should be created and how do you close out the investigation? It also explores the
investigation process and provides guidance from a seasoned investigator as to how to handle the
many issues that you will often confront during the course of an investigation.
5

ABOUT THIS SERIES:
HR, Talent Management, Employment Law Boot
Camp
If you have employees or advise companies with employees, this webinar series is for you! No
employer—whether large, medium or small—is immune from the reach of federal, state and/or local
employment laws and regulations. Now, more than ever, employers should consider taking a
proactive approach to auditing their employment practices and policies so that they can better
respond when issues arise. This webinar series approaches the employer-employee relationship
from beginning to end, with programs covering the most important steps along the way, including
hiring and onboarding, policy and procedure development and training, wage and hour compliance,
accommodating disabled employees, conducting investigations and considerations associated with
ending the relationship.
6

EPISODES IN THIS SERIES
4/3/19 Episode #1: Welcome to the Team! Recruiting and Hiring, Including
Restrictive Covenants
5/8/19 Episode #2: An Ounce of Prevention: Policies, Procedures and Proactivity
6/5/19 Episode #3: Show Them the Money: Wage & Hour Compliance
7/10/19 Episode #4: Time for a Break: Managing Leaves of Absence and
Accommodating Disabilities
8/7/19 Episode #4: Know What You Did Last Summer: Workplace Investigations
9/4/19 Episode #4: It’s So Hard To Say Goodbye: Minimizing Risk When
Terminating Employees
7
Dates shown are premiere dates.
All webinars will be available
On Demand approximately 4 weeks
after they premiere.

Episode #5:
Know What You Did Last Summer:
Workplace Investigations
8

OVERVIEW
9

WHAT IS AN INTERNAL INVESTIGATION?
• Compliance tool to determine whether policies or procedures have been violated
by an employee
• Assures adherence to company goals, mission & values
• Assures quality in products or services
• Ensures a sound & factual basis for informed decision-making or appropriate
discipline
• Reduces exposure to claims / risk management
1
0

WHEN IS AN INTERNAL INVESTIGATION
TRIGGERED?
• Complaint or report of policy violation
✓ Even if victim insists on no action
✓ Written or verbal complaints
• Management observation
• Injury or illness
• Threats
• EEOC, NRLB or other lawsuit
✓ Even if employee did not complain internally
• DOL, unemployment compensation audit
• Theft of company property or information
1
1

WHEN IS AN INTERNAL INVESTIGATION
REQUIRED?
• If discrimination laws are implicated (Title VII, ADA, ADEA)
– Farragher/Ellerth Defense
• OSHA
• Drug Free Workplace Act
• SOX
• Securities Act
• DOT regulations
• HIPAA
1
2

SCOPE OF INTERNAL INVESTIGATION
• “Informal” investigation?
✓ Minor policy violation
✓ Resolve the issue quickly without many interviews or witnesses
• “Formal” Investigation?
✓ If there is legal exposure
✓ Serious policy violation
✓ Need to document & result
1
3

FORMAL INTERNAL INVESTIGATIONS
• How serious is the policy violation or conduct?
• How many employees are involved?
• Is there an immediate threat to loss of company information or danger to
employee(s)?
• What areas of law are implicated?
• Does the investigation need to be completed immediately?
✓ “Statute of limitations?”
1
4

FORMAL INVESTIGATIONS SHOULD
TAKE PLACE IMMEDIATELY
• Lock in witnesses’ stories & recollections
• Documents / E-mails / texts can be lost or destroyed
• Prevent spoliation & potential adverse inference at trial
• Witnesses may leave the company
• Ensures compliance with legal duty to investigate promptly & thoroughly
1
5

ELEMENTS OF A GOOD INTERNAL
INVESTIGATION
• Prompt – but not rushed
• Thorough – but not too long (sliding scale)
• Confidential – as much as possible but no absolute gurantees
• Impartial & objective
• Conducted by disinterested & respected personnel or third parties
• Effective at facilitating an appropriate outcome for all sides
1
6

CONDUCTING AN EFFECTIVE
INVESTIGATION
1
7

OUTLINE OF INTERNAL INVESTIGATION
• Identify goals & outline plan
• Identify investigator or team of investigators
• Gather documents
✓ Personnel file
✓ Prior complaints
✓ E-mails, documents, correspondence, texts
✓ Employee handbook or policies implicated
✓ CBA (collective bargaining agreement) – if unionized
1
8

OUTLINE OF INTERNAL INVESTIGATION
(CON’T)
• Maintain investigation file
✓ Interview notes of all witnesses
✓ Signed statements
✓ Final report with conclusions & recommendations
• Consider external resources
✓ Outside counsel
✓ Private investigators
✓ IT (information tech or forensic exminations)
1
9

WHO SHOULD INVESTIGATE?
• Human Resources
✓ Good for minor violations of policy
• Outside consultant/investigator
✓ Particularly if there could be a conflict of interest or you want appearance of
impartiality
• In-house or outside counsel
✓ If a threat of litigation
• Forensic examiners
✓ Electronic data or misappropriate of proprietary information
FLSA claims
• Law enforcement
✓ If violence or theft is suspected
2
0

WHO TO INTERVIEW?
• Decide who to interview & when
✓ Complainant
✓ Victim (if not the complainant)
✓ Accused
✓ Witnesses
o Employees in the same department
o Employees other witnesses identify as knowledgeable
o Authors of documents
2
1

WHO TO INTERVIEW (CON’T)
✓ Management
✓ HR
✓ Experts within the company
• Typically interview the complainant, then the accused, then witnesses &
conclude with the complainant again
2
2

INTERVIEW TECHNIQUES
• Prepare an opening statement
✓ Thank interviewee
✓ Explain what you are investigating
✓ Explain why the interviewee was selected
✓ Explain that the company takes this matter seriously & has a commitment to
investigate
✓ Cooperation is expected
✓ Company has firm no-retaliation policy
✓ Information will be kept “as confidential as possible”
2
3

INTERVIEW TECHNIQUES (CON’T)
• Use traditional, deposition style questions
✓ Ask open-ended questions
✓ Don’t dominate the conversation
✓ Allow time for follow up & responses; don’t rush the witness
✓ Active listening & follow-up
✓ Cover all bases (“Is there anything else you can remember?)
✓ Ask if there is anyone else you should speak to.
2
4

INTERVIEW DOCUMENTATION
• Written statement from witness
• Recorded interview/statement from witness
• Interview notes
✓ Personal observations vs. reported facts
• Summary memorandum
• Relevant documents relied upon & used for each interview
• Report
✓ Include recommendations for action?
2
5

OTHER SOURCES OF INFORMATION
• Emails
• Text messages
• Instant messages
• Voicemails / telephone records
• Home computers
• Personal electronic devices
• Video / audio surveillance
• Social networks
2
6

FINAL REPORT
• Consider format of final report
✓ Formal? Summary? Memo to file?
• Who will read it?
✓ Board of Directors
✓ Outside auditors
✓ Legal counsel
✓ Government agencies?
✓ Plaintiff’s counsel?
✓ Press
✓ Law enforcement
2
7

FUNDAMENTALS OF FINAL REPORT
• Report should contain:
✓ Summary of the issues
✓ Relevant facts
✓ Methodology used to conduct the investigation
✓ Scope of the investigation
✓ Applicable law
✓ Findings
✓ Recommendations
2
8

NEXT STEPS
• Appropriate remedial action taken
✓ To the accused
o Discipline for the misconduct
o Consistent with past practice
o Sufficient to avoid future problems
✓ To the victim
o Restore lost job benefits & compensation
o Report results of investigation
o Confirm in writing
✓ To others to avoid future conduct
✓ Avoid retaliation!
2
9

SPECIAL CONSIDERATIONS
3
0

SPECIAL CONSIDERATIONS
• Attorney-Client Privilege
✓ Upjohn v. United States
✓ But, must give a corporate “Upjohn” warnings
oCounsel represents the company, not the individual
oEmployee being interviewed to assist counsel in providing legal
advice
oStatements made by employee will be shared with company
oCommunications are privileged
oCompany alone owns the privilege
3
1

RIGHTS OF THE INTERVIEWEE?
• Right to counsel?
- If accused is facing possible criminal charges
- If employee reasonably believes answer would incriminate them in a
criminal case
• Right to a “friend?”
• Right to union representative?
- Consider whether CBA applies to investigations of complaints
• Can an employee refuse to participate?
3
2

CONFIDENTIALITY ISSUES
• Can you keep the investigation confidential?
✓ NLRB’s position
o Employer cannot maintain a blanket policy/rule regarding the
confidentiality of employee investigations.
o Employer must demonstrate a need for confidentiality on a case by case
basis – is there a “legitimate & substantial business justification” that
outweighs Section 7 rights?
✓ EEOC’s position
o Similar to NLRB
3
3

PRIVACY ISSUES
• Does the employee have a reasonable expectation of privacy in private files on
office computer?
✓ Courts are split – some fine that private emails sent from work computer
is protected & some find they are not
• Social networking privacy
✓ State laws restrict employers from asking for passwords to social media
accounts or passwords to private email accounts
✓ Don’t ask a subject of an internal investigation to grant access to their online
social networking accounts as part of the investigation.
3
4

STRATEGIES TO AVOID CLAIMS
AFTER AN INVESTIGATION
3
5

STRATEGIES
• Regularly train managers & supervisors on HR policies
• Develop & disseminate policies to lower privacy expectations
• Investigate only on reliable, documented factual allegations that justify
investigation
• Do not investigate more than necessary
• Maintain confidentiality to the extent possible
• Use the appropriate investigator
• Make decisions & take action
3
6

ABOUT THE FACULTY
3
7

Charles Krugel – cak1@charlesakrugel.com
As a management side labor & employment attorney & human resources (HR) counselor,
Charles Krugel has 20-plus years of experience in the field & has had his own practice for
more than 15 years; www.charlesakrugel.com.
Charles’ clients are small to medium sized companies & not-for-profits in a variety of
industries. His practice is equal parts prevention, negotiation & litigation. Besides
providing traditional labor & employment law services, he represents companies desiring
to institute preventive & proactive HR functions. These functions include policies &
procedures that which help to efficiently and discreetly resolve issues in-house & prevent
lawsuits & complaints. They also help to reduce costs & act as catalysts for increasing
productivity & profits.
For perspectives of what Charles’ clients think of him, please see his “Client Testimonials”
web page.
3
8

Emily Fess – Emily_fess@rush.edu
Emily C. Fess is an Associate in the Benesch’s Labor and Employment Practice Group.
Emily counsels and represents employers on a broad range of employment law matters,
including medical leave and accommodation requests, discipline and discharge,
harassment and workplace investigations and wage and hour issues.
Emily’s litigation experience includes regularly responding to discrimination charges filed
with the EEOC and state agencies and representing clients in federal and state court in
various Title VII, ADA, FMLA, FLSA and retaliation suits.
In addition to assisting clients, Emily is involved with the community as a volunteer with
Big Brothers, Big Sisters of Metropolitan Chicago and a member of Step Up Women’s
Network.
3
9

Jason Klimpl – klimpl@thsh.com
Jason B. Klimpl is a partner in the Employment Law Group of Tannenbaum Helpern Syracuse & Hirschtritt
LLP. In this capacity, he advises clients on a broad range of employment law matters, such as wage and hour
compliance; healthcare; equal opportunity actions and policies; employment agreements and restrictive
covenants; independent contractor and consulting issues, reductions in force; technology and privacy
concerns; and other human resources counseling. Jason is also the Associate General Counsel of the New York
Staffing Association, and is heavily involved in legal and legislative efforts to support the staffing industry.
Jason has written numerous employment law articles and is a contributing faculty member of both Lawline
and the National Academy of Continuing Legal Education. Jason is also a member of the Manhattan Chamber
of Commerce’s Speakers Bureau and Help Desk.
-Awarded Martindale‐Hubbell “Preeminent” peer review rating.
-Named 2013 ‐2017 New York Super Lawyer (Rising Star).
-Finally, the New York Enterprise Report named Jason the winner of the 2012 Best Attorneys and Accountants
“Rising Star Attorney” category.
Follow Jason on Twitter: @HR_Attorney
4
0

Gary Savine – gnoah@savinelaw.com
Gary Noah Savine is an employment lawyer and the founder of Chicago-based law firm
Savine Employment Law, Ltd. Gary brings to the table over twenty years of legal expertise
and hands-on experience, working around the globe, shoulder-to-shoulder with senior
executives and human resource professionals solving the thorniest of workplace disputes.
Before starting his firm, Gary practiced employment law exclusively at two of Chicago’s
largest law firms and served as chief employment counsel at Navistar (NYSE: NAV) and
Hill-Rom Holdings (NYSE: HRC). Gary frequently speaks and writes about employment
law issues. He has written and presented before the American Bar Association, the
National Employment Lawyers Association, the Northern Illinois Society for Human
Resources Management, the Northern Illinois Franchise Association and the American
Conference Institute. Gary received his law degree cum laude from the University of
Michigan Law School in 1996. More information about Gary’s firm can be found at
www.savinelaw.com.
4
1

Ruth Rauls – ruth.rauls@saul.com
Ruth concentrates her practice on complex commercial litigation, employment litigation,
real estate litigation and litigation involving closely-held corporations. She has extensive
experience litigating matters at the trial and appellate levels in state and federal court in
New Jersey and New York, as well as in private mediations and arbitrations. She has
litigated claims arising under the New Jersey Consumer Fraud Act, the New Jersey Law
Against Discrimination, and various other federal and state statutory and common law
causes of action.
To read more about Ruth, please visit: https://www.saul.com/attorneys/ruth-rauls
4
2

QUESTIONS OR COMMENTS?
If you have any questions about this webinar that you did not get to ask during
the live premiere, or if you are watching this webinar On Demand, please do
not hesitate to email us at info@financialpoise.com with any questions or
comments you may have. Please include the name of the webinar in your email
and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily
for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education.
4
3

ABOUT FINANCIAL POISE
DailyDAC LLC, d/b/a Financial Poise™ provides
continuing education to attorneys, accountants,
business owners and executives, and investors. Its
websites, webinars, and books provide Plain
English, entertaining, explanations about legal,
financial, and other subjects of interest to these
audiences.
Visit us at www.financialpoise.com.
4
4
Our free weekly newsletter, Financial Poise
Weekly, educates readers about business,
business law, finance, and investing. To receive
it simply add yourself by going to:
https://www.financialpoise.com/newsletter/
Email addresses are never sold to or shared
with third parties.

Know What You Did Last Summer: Workplace Investigations (Series: HR, Talent Management & Employment Law Boot Camp)

Recommended

Recommended

More Related Content

More from Financial Poise

More from Financial Poise (20)

Recently uploaded

Recently uploaded (20)

Know What You Did Last Summer: Workplace Investigations (Series: HR, Talent Management & Employment Law Boot Camp)