EEO Internal Investigations: Guidance for Employment Counsel Planning and Conducting Effective Investigations of Discrimination, Retaliation and Harassment Claims Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. WEDNESDAY, OCTOBER 8, 2014 Presenting a live 90-minute webinar with interactive Q&A Mark A. Konkel, Partner, Kelley Drye & Warren, New York Thomas M. Johnson, Jr., Esq., Gibson Dunn & Crutcher, Washington, D.C. Laura Kirschstein, Managing Director – Sexual Misconduct Consulting & Investigations, T&M Protection Resources, New York
Transcript
EEO Internal Investigations:
Guidance for Employment Counsel Planning and Conducting Effective Investigations
of Discrimination, Retaliation and Harassment Claims
37.4% of EEOC charges in 2011 included a claim of retaliation
Up from about 20% from 15 years ago
Best predictions – retaliation and whistleblower claims will go higher in 2012
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Money – Always a Motivator
Retaliation/whistleblowers verdicts are rising
Retaliation claims are “easy” to prove/employees are getting “bolder”
Whistleblowers – Dodd Frank – increased potential “bounty” recoveries and created easier burdens of proof, longer SOL
Attorneys Fees – Plaintiffs’ bar smells “green”
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Eye Popping Whistleblower Numbers
DOJ collected nearly $5 billion during FY 2012 in FCA settlements and judgments
$3.8 billion in FY 2013
Individuals sue on behalf of the government and share in the proceeds
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The Goal Why Do We Investigate?
Comply with Legal Requirements
Provide Defense to Legal Claims
Support Good Workplace Climate
Determine the Facts
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The Balance
Prompt Thorough
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Framing the Issue
Who?
What?
How?
Managing Sensitive Internal Investigations
The Infamous Words
“I need to talk to you”
How and when do those words require a response
What should that response be
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What is a “Complaint”?
Statements about the workplace or a supervisor
Comments overheard by a supervisor
Comments just “between friends”
Ordinary workplace griping
vs.
The “official” grievance or hotline complaint
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Who? How Did This Complaint Come In?
Legal
HR Legal Compliance Corporate
Security
Location
Managers EH&S
Other
Teams
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Supervisors Receive Majority of 1st Reports
56% Your Supervisor
26% Higher Management
6% Other
5% Hotline/Help Line
5% Other Responsible Person Including Ethics Officer
3% Someone Outside Your Company
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What Are We Dealing With?
Safety
Regulatory
Employment
Financial Fraud
Criminal
Each will require a
Different response
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Who Do You Need to Notify?
Ethics & Compliance
Human Resources
Legal Audit Management Security
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How Understanding the Allegation
Meeting the Complainant
Determine who, what, where, when, why
and how
Ask the reporter with whom do they think
the investigator should talk.
Ask whom the reporter has spoken
to about the issue
Ask whether the issue has affected
the reporter’s job.
Get as much detailed information as
possible to prepare a good, efficient
investigation plan.
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First Conversation is crucial
Why?
Sets the tone
Sets expectations
So that first communication must by a consistent message about the company’s policies and practices
DO ALL OF YOUR MANAGERS HAVE THAT MESSAGE?
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Key Points
Be objective and do not express opinions about the alleged conduct and avoid opinions or comments about the character or ability of the others involved
Reassure the reporter that the company takes these complaints seriously and will determine whether an investigation is needed.
Emphasize that no final conclusion will be reached until the investigation has been completed.
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Old Rule – Investigations should be confidential and should not be discussed in the workplace
Still a good rule (in general)
BUT
Be Aware – the NLRB has taken the position that such rules can violate that NLRA. So, be careful how you implement
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What about confidentiality?
The Complainant – Concerns
Thank the complainant for coming in to report
If the reporter says that he only wants to share his concerns but does not want an investigation conducted, inform the reporter that your company may have a legal obligation to investigation the report.
Remember – allegations are not facts.
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Other Key Points
Explain the process
Say “we take complaints seriously”
Emphasize no retaliation
Ask them to “tell me everything”
What about:
How will the accused be punished?
Should I get a lawyer?
Will – know my name?
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Anonymous Reports
Anonymous reports should not be discounted unfairly.
An anonymous report maybe malicious, or may be valid and accurate.
Most employees do not trust management to keep their names confidential. Most people do not want to be identified as the person responsible for bringing the matter to the attention of the management.
Question – Do you want to know the name of the anonymous reporter?
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How The Strategy
Once the scope has been determined, make your plan.
This is more than just a blueprint. It incorporates your proposed strategy.
The strategy of the investigation should move from the general to the specific, gradually zeroing in on the subject by carefully acquiring and analyzing information.
As information is gathered, your theory can be refined to focus the investigation on the most logical source of misconduct and/or business process failure.
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The Plan
An investigation plan does not have to be formal, but set the scope properly so you will have the right parameters to guide you.
You always must be prepared to explain why you did what you did.
Never put yourself in the position of explaining your plan by saying that you never considered any other course of action.
If documented – cloak it in privilege
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Choosing the Right investigator
Managing Sensitive Internal Investigations
Who Should Investigate?
Lawyers
Auditors and Accountants
Corporate Security
Human Resources
Private Investigator
Consider the issue at hand
Rule: Resist the temptation to use any investigator. For best results, match their skills to the type of investigation you are conducting.
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Role of the Investigator
Impartial Fact-Finder (No Biases)
Good Listener
Appropriate Credentials
Attention to Detail
Reach Reasonable and Factual Conclusions
Properly Document Investigation
Fairness
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Questions to Ask:
Is the investigator properly trained?
Does s/he have proper expertise?
Could the investigator appear biased?
Does s/he have the right credentials?
Will s/he be a good witness?
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In-House Counsel or Outside?
Consider:
What are internal resources within and outside Law Department
Do you want to make lawyer a witness?
Is it practically or “politically” feasible?
Who in the organization is being investigated?
Ascertain privilege protections
Do you want to conflict your outside counsel?
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Manage Investigator
If investigator is used as a defense, there will be no privilege
Make sure s/he knows to stay inside scope
Stick to the issue
Don’t go outside scope without talking to you
This is not CSI – treat employees with respect and presume innocence
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Gathering and “Managing” the Evidence
Managing Sensitive Internal Investigations
Evidence
3 Sources
Each must be gathered and “managed” in a different way
People Paper Electronic
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People
Who are the executives and managers?
Who are likely witnesses?
What should they be told?
What they should / should not document
Does anyone need to be removed / placed on leave?
Do we need a privilege protocol?
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Key Points
Don’t destroy evidence
Delete emails
Delete documents
Don’t “create” evidence
Write memos
Write emails to each other
Don’t RETALIATE
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Documents — What Can You / Should You Look At?
Personnel files
Time cards
Email , texts
Others Electronic files
Medical files
Expense files
Project files
Documents in possession of the claimant and witnesses
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Other Sources??
Property - desks and lockers
Private Investigations
Workers’ Compensation Carriers
Criminal Records
Drug and Alcohol Tests
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Electronic Evidence
Do you need a litigation hold?
Who should get it?
What should it say?
Make sure recipients really understand obligations
Make sure to involve IT
Understand your systems and how they work
Follow up
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Other Sources?
Text messages
Outside work emails
Personal Twitter, Facebook messages
Photos – on cell phones, Facebook, Instagram
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Should You Use Google, Check Emails and Other Online Search
Tools to Check into Personal and Non-work Related Activity?
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Electronic Data & Communications — Issues
Be aware of legal obligations
Train managers NEVER to secretly look at social media accounts
