LeadingAge New York before the National Labor Relations Board, the Division of Human Rights and the...

WORKPLACE INVESTIGATIONS:

BIG OPPORTUNITIES,

BIG RISKS

LeadingAge New York LeadingAge New York

HR Summit

October 10, 2013

John M. Bagyi, Esq., SPHR

Bond, Schoeneck & King, PLLCAttorneys At Law Since 1897

111 Washington AvenueAlbany, NY 12210

Telephone: (518) [email protected]

John M. Bagyi

John counsels and represents employers of all types and sizes in a variety of labor and employment-related contexts, including workplace investigations, policy development and review, wage and hour and EEO compliance, union organizing campaigns, strikes and picketing, proceedings before the National Labor Relations Board, the Division of Human Rights and the EEOC, and employment litigation in Federal and State courts. He also provides a broad range of employment law and human resource training to executives, managers, supervisors, and employees.

John has written extensively on labor and employment law topics and is also a frequent speaker at national, state and local conferences, including the 2008 National SHRM Conference. He has also served as a guest lecturer at Albany Law School, RPI, and the School of Business at the University at Albany. Since 2005, John has served as General Counsel to the New York State Society for Human Resource Management.

Listed In • Super Lawyers

®, Corporate Counsel Edition, 2009 - present

• New York Super Lawyers®, Upstate Edition, 2009 - present

• The Best Lawyers in America® 2007-present

Honors and Awards • “Lawyer of the Year” Albany Employment Law – Management, The

Best Lawyers in America® 2014

• "Lawyer of the Year" Albany Labor Law - Management, The Best Lawyers in America

® 2014

• Who’s Who in America®

• Who’s Who in Emerging Leaders®

• Excellence in Alumni Service Award, Albany Law School, 2005

• 40 Under Forty Honoree, Capital District Business Review, 2004

• Associate Member of the Year, New York State Association of Health Care Providers, 2003

• Justinian Honor Society

• Executive Editor, Albany Law Review

Community Involvement • Founder and Facilitator, CRHRA HR Leadership Program, 2006-

present

• General Counsel, New York State Society for Human Resource Management, 2005-present

• Founder and Facilitator, CRHRA/BS&K HR Executive Briefing Series, 2004-present

• Executive Committee, National Alumni Association, Albany Law School, 2002-2007

• Co-Chair, Capital Leadership Steering Committee, Albany-Colonie Chamber of Commerce, 2003-2005

• Board of Directors, Capital Region Human Resources Association,

2002-2004

Contact

111 Washington Avenue Albany NY 12210-2211 [email protected] 518.533.3229 Direct 518.533.3299 Fax

Education

Albany Law School of Union University (J.D., magna cum laude, 1996)

University at Albany, State University of New York (B.A., 1993)

Bar Admissions New York Massachusetts U.S. Supreme Court Northern District of New York

Affiliations

Albany Co. Bar Association American Bar Association American Society for

Healthcare Human Resources Administration (ASHHRA)

College and University Personnel Association (CUPA-HR)

National Association of College and University Attorneys (NACUA)

New York State Bar Association

LinkedIn linkedin.com/in/johnbagyi

Twitter @johnbagyi

Facebook

facebook.com/john.bagyi

1 © 2013 Bond, Schoeneck & King, PLLC306865.2

The Opportunities

• An opportunity to prove HR’s value to the organization

• A lawful, effective investigation is often your best defense against liability

1

The Risks

• An improper, unlawful or ineffective investigation may expose both the organization and the investigator to liability

2


Bottom Line

• Be ready to conduct a workplace investigation−Get educated now

− Identify internal obstacles that may hinder your ability

to investigate

� Determine how you will work around/eliminate those

obstacles

−Review/draft relevant policies

−When a need for investigation arises – Just Do It!*

−Don’t screw it up.

*assuming you are the appropriate person to do it

3

Identifying the Need for and

Scope of an Investigation

�Assuming no investigation is necessary

�Conducting an investigation, but not interviewing the alleged wrongdoer

�Interviewing the wrongdoer, with termination/ disposition letter in hand

4


Selecting an Investigator

�Assuming HR should always conduct the investigation

�Assuming HR should never conduct the investigation

�Assuming legal counsel/an outside consultant should always conduct the investigation

Considering the facts of each case and choosing an appropriate investigator accordingly

5

Traits of a Good Investigator

�Chatty Cathy

Discreet

Available

Knowledgeable of investigations and relevant policies

Professional

Good communicator

Good witness

�Friendly with those involved

Impartial/open-minded

Inquisitive

Adaptable

6


Now what?

�Finish up the open enrollment planning that has been sitting on your desk

�Take an online course in workplace investigations

�Immediately schedule interviews

�Run screaming from the room

Develop a plan

7

The Investigation Plan –

Considerations

• What is your goal?

• What policies, guidelines or legal concerns apply?−What are the employer’s obligations with respect to

these concerns?

• What documentation do you need to review?

• Who are your potential witnesses?

• What is your timeline for completing the investigation?

• Are interim measures required?

8


Documents

• Identify−Emails and other electronic data (e.g., swipe records)

− Letters, memos

−Expense reports, receipts

−Timecards

−Personnel files – evaluations, progressive discipline

� Managers’ “informal” personnel files

−Training records

−Employee handbook and other relevant policies and

procedures

• Gather

• Review9

Timeline

• From the outset of the investigation, create a timeline of events

• Add additional events as the investigation progresses

10


Witnesses

• Establish who they are−Those identified by the complainant (if applicable)

−Those identified by the alleged wrongdoer

−Others with relevant knowledge

• Determine the best order for interviews

11

Preparing for Interviews

• Prepare outlines −Standard open

−Core questions applicable to all witnesses

−Witness-specific questions

−Standard close

• Anticipate questions interviewees will ask you

• Schedule interviews−Advisee interviewees what to bring

(cont’d)

12


Preparing for Interviews

• Identify a witness/note taker

• Plan documentation strategy−Note taking

−Establish separate and confidential investigation file

• Consult with counsel− Identify legal concerns before beginning interviews

13

Attorney Client Privilege

• Attorney client privilege is your friend, but you cannot create it retroactively

• Involve counsel early

• Develop a plan for creating and maintaining the privilege

14


“Opening” Interviews

• Develop rapport

• Explain purpose of interview

• Describe role of investigator and witness/note taker

• Clarify that no conclusion has been reached

• Inquire about recording devices

• Address−Confidentiality (be mindful of NLRB & EEOC

concerns)

−Retaliation

15

Confidentiality

• Before imposing confidentiality directive, −make individualized assessment of need for

confidentiality:

� Are witnesses in need of protection?

� Is evidence at risk of being destroyed?

� Is there a danger of testimony being fabricated?

� Is there a need to prevent a cover-up?

−when complaint involves protected activity (e.g.,

discrimination) consult with counsel

16


Addressing Retaliation Concerns

• Issue the complaining party, alleged wrongdoer and all witnesses a written statement:−Restating prohibition of retaliation

−Directing complaining party and witnesses to report

retaliatory action

− Identify avenues of complaint

− Obtain acknowledgment; provide copy

• Insure HR is notified/involved in employment actions affecting the complaining party/witnesses

17

Questions for Witnesses

• Funnel approach – start broad−Get background info

−Then - “Tell me what happened?”

• Probe for details−Who? What? When? Why? Where?

−Who witnessed?

−Who did you tell about it?

−Explore basis for witness knowledge – how do you know

this?

• Any notes/documents or other physical evidence?

• Anyone else we should speak to?

18


Interviewing the Complainant

• Discuss employee’s comfort with investigator’s ability to investigate objectively

• Determine if there are any safety or security concerns requiring interim action

• Inquire how he/she would like complaint resolved

• Outline next steps

• Establish timeline for follow up−Note: if timeline changes, communicate this to

complainant

19

Interviewing the Accused

• Generally the most important interview of the investigation

• Be emotionally and factually prepared

• Anticipate adversarial/confrontational behavior

• Do not allow interviewee to “take control”/hijack the interview

(cont’d)

20


Interviewing the Accused

• Confront with information inconsistent with his/her version of events

• Test credibility−Ask questions to which you know the answers

• Lock the employee’s story in place

21

Interviews – Dos and Donts

Inquire about relationships between accused/accuser/witnesses

Ask witnesses about motivation and timing of complaint

�Interrupt during interviewee’s narrative

Allow interviewee to tell his/her story, take notes, then ask follow up questions when interviewee is done

(cont’d)

22



�Ask leading questions− “Isn’t it true that Joan started acting bossy after she

got promoted?”

�Ask compound questions− “What did you see and how did that effect your

evaluation of Harold?”

�Focus exclusively on interviewee’s first-hand knowledge

Use silence to your advantage(cont’d)

23


�Strictly adhere to pre-prepared questions

Ask all necessary questions – even those that may be uncomfortable

�Answer your own questions

�Comment on− allegations, facts presented or findings

− the parties involved to other parties/witnesses

�Reach a conclusion as early as possible in the investigation

(cont’d)



Ask if interviewee−Told anyone else what they witnessed

−Took contemporaneous notes

−Has any evidence related to events

Get the documents/evidence

Do not hesitate to circle back to previously interviewed individuals−But do not rely on this

25

Be Prepared

• What do I do if the employee refuses to meet?

• What do I do if the employee shows up with a lawyer?−with his/her spouse?

• What do I do if the employee brings a recording device?

26


“Closing” Interviews

• Review your understanding of key points

• Review your notes to assure you’ve followed up as appropriate

• Ask interviewee to clarify, correct and confirm completeness

• Remind of:−Confidentiality

−Retaliation

• Provide contact info and ask interviewee to contact you with additional info

• Thank interviewee27

Credibility

• Will credibility be an issue?−Yes, credibility will virtually ALWAYS be an issue.

• Accordingly:−Expect a “he said, she said”

−Be prepared to make credibility determinations

−Document observations of behavior during interviews

−Question witnesses with this in mind

−Push back/confront when a statement doesn’t make

sense

−Consider motivations/past history

28


Workplace Searches

• Know what/when you can and cannot search−Technological resources (e.g., computers, e-mail,

voicemail, telephone)

−Persons and belongings

−Work areas, desks, lockers

−Ground and inter-office mail

29

Documenting Investigation

• Memorialize investigation−Notes

−Written statements/affidavits

• Separate Investigation file− conclusion and related discipline in appropriate

personnel files

30


Recommend Appropriate Action

• Determine appropriate action− If violation of company policy and/or law, administer

appropriate discipline, up to and including termination

−Consider mitigating circumstances

� Remember – “valuable” employees cannot be

insulated from discipline for wrongdoing

−Consider other forms of progressive discipline if no

clear violation occurred or if evidence is inconsistent

(cont’d)

31

Recommend Appropriate Action

• Communicate outcome of investigation−Decisionmaker

−Complainant

−Accused

−Managers/supervisors (as appropriate)

32


Beware of Common Pitfalls

• Delaying commencement or completion of investigation

• Improper influence by management

• Lack of thorough investigation

33

Policy Concerns

• IT policy−Secure consent to access, intercept, monitor and

disclose

− Identify who can authorize such

• Record retention and destruction policy− Include electronic records

• Anti-discrimination/harassment policy and complaint policy and complaint procedure

(cont’d)

34


Policy Concerns

• Mail

• Drug and alcohol policy−Carefully define basis for “cause”/”reasonable

suspicion” testing

• Workplace searches/investigations policy− Lower/eliminate expectations of privacy

−Advise employees of obligation to cooperate

35

In closing…

• Do you have the policies necessary to enable you to conduct an effective workplace investigation?

• Do you know how you would go about accessing employee email?

• Do you know where you would send an employee to be tested for drugs/alcohol?

(cont’d)

36


In closing…

• Have you identified/established a relationship with legal counsel that is knowledgeable and experienced in workplace investigations?

• Are you prepared to begin an investigation tomorrow morning?

37

All rights reserved. This presentation may not

be reprinted or duplicated in any form, without

the express written authorization of

John M. Bagyi, Esq., SPHR.

38

linkedin.com/in/johnbagyi

facebook.com/john.bagyi

@johnbagyi

Date post:	12-Apr-2018
Category:	Documents
Upload:	nguyenlien
View:	216 times
Download:	3 times