Strategic HR Lawyer

The Supreme Court will hear oral argument today in the case of Plaintiff Sheila White and Burlington Northern Santa Fe Corp. Ms. White alleges that following her report of sexual harassment and the suspension of her supervisor as a result, she was reassigned to dirtier work on the tracks, even though her job classification stayed the same.

According to the EEOC, about 30% of all charges are retaliation claims. In fact, it is not uncommon for claimants to win on the retaliation charge after their underlying discrimination charge is dismissed. See my recent posts on this very subject here, here and here.

The question the Court will have to grapple with is helping us to understand what retaliation really is. In other words, when is a seemingly simple management decision (i.e. to reassign work or transfer an employee) just that and when is it retaliatory? We'll soon find out.

In the mean time, here are some suggestions that many organizations miss in their preventive practices:
1. Make sure your training deals specifically with the subject of retaliation - not a gloss over but in-depth discussion of what it is AND what managers and employees obligations are.
2. Make sure your policy deals with it specifically - again not a gloss over.
3. Make sure when you have completed an investigation, that you take further steps to a) follow up with the claimant to ascertain whether there is retaliations, AND, b) to observe subtle patterns of behavior in the workplace. The end of your investigation is not the end of your responsibilities.

Posted By Diane Pfadenhauer In Employment Law , Workplace Investigations | Permalink

All too often I hear of the human resources professional being dragged into litigation - either being sued personally, or being abandoned by an employer who, during the heat of litigation, states that the HR professional's actions were not in the scope of their employment or contrary to policy.

This articulate post on the Kentucky Employment Law Notes blog discusses a recent case against a Human Resources Manager in connection with statements made in an employee termination meeting. The plaintiff alleged that the statements made by the Human Resources Manager, in the presence of a witness, were defamatory. The author offers some worthy advice:
"(1) Conduct termination meetings in a closed door environment.
(2) If a witness is to be present at the termination meeting, select a witness with some legitimate, business need to know the reasons for termination and/or to be present at the meeting.
(3) Be able to articulate concrete facts that support the allegations made against the employee.
(4) Be able to articulate the reasonable steps the Company took to investigate the allegations against the employee, and...be able to prove the Company did not conduct a one-sided investigation."

Thanks to our northern neighbor, Michael Fitzgibbon for bringing this to our attention.

Posted By Diane Pfadenhauer In Employment Law , Workplace Investigations | Permalink

Fran Sepler, the "uber-investigator," provided an interesting post on her blog about conducting workplace investigations.  The question relates to whether one investigates as a team (two investigators and one interviewee) or as a solo.  She discusses the impact of the duo on an investigation.  I love when other people provide great investigation tips!  Take it away Fran... (link to post)

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

Next Wednesday, November 16, I'll be speaking for the Labor & Employment Law Society of St. John's Law School (my alma mater).  The topic is workplace investigations and begins at 6:00 at the Law School in Queens.  See you there.

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

Why You Need an Outside Third Party Investigator - Someone once told me that it's hard to do something for many years (in my case north of 20) and not develop some strong opinions.....  As an HR professional before I went to law school at night, I always believed it was my obligation as an HR professional to conduct the investigations for my company.  Believing I was competent and could be neutral, I had always been taught that it was an appropriate role for the internal HR professional to conduct investigations and that other people would see it that way.  All the legal reasons aside, I began to rethink that idea when I was involved in a highly politically charged investigation at one of my companies.   Without going into the details, I found that upon learning of the allegation, major sectors of the organization took competing sides.  The very fact that an investigation had to be done resulted in incredible opposition by some powerful players in the organization.  Who was stuck in the middle?  ME. 

That became a turning point for me and I began to question the idea of investigations, their neutrality, the political environment within organizations - all aside from the legal issues which I believe support the use of third party investigators anyway.   

I do a fair amount of speaking and writing on the subject and my most recent article  should suffice to provide a relatively detailed view on why I take a non-traditional view of how investigations are handled and the roles of various parties.  Happy reading:  Download hraj_0805_investigations.pdf 

Posted By Diane Pfadenhauer In Workplace Investigations 1 Comments | Permalink

Fran Sepler on Seplerblog raises an intresting question relating to when you look at the employee's file (see her post here).  She notes that by looking at the file too early in the investigation, it may sway the investigator's perception of the facts.  By looking at it too late, the investigation may be hampered by not having relevant information.  The bigger conclusion she notes, however, is the most important -

"As with any investigative decision, be prepared to explain why you did it the way you did it.  Remember, the very worst answer to the question "why?" is "Because I did not consider any other course of action.""

All too often when the investigation is challenged, the investigator cannot explain why he/she made certain decisions to do things a certain way.  This leaves the credibility of the investigation suspect.  Consistency and thoughtful careful decision making along the way can make the difference between a poor investigation and one that can be relied upon.

Posted By Diane Pfadenhauer In Workplace Investigations 2 Comments | Permalink

The Half-Baked Investigation - Our Northern neighbor, Michael Fitzgibbon, has had a few posts of late on the subject of workplace investigations.  He recently discussed the perils of a rushed investigation.  I often refer to these as "the half-baked investigations."  Typically, an employer learns of an allegation of wrong doing, starts conducting an investigation, learns there may be some truth, call the lawyers in and then I get a call.  By the time I arrive to conduct a new investigation, I learn that the previous attempt by internal management was not as thorough as it might have been.  All to often, witnesses were missed, evidence missed and erroneous conclusions drawn.  But, that's the GOOD news, because counsel was called in time and a new investigation, which will objectively review the facts, is underway.

What Michael describes is what happens when an investigation is rushed.   While based on Canadian law, there is certainly application for us in the States.  He notes...

"Care must be taken about who will conduct the investigation, whether they are entirely objective and whether they are the most appropriate person.  Furthermore, ... it is imperative for the investigator to follow up with appropriate people where there are "gaps".  "Sweeping the corners" is an overused phrase, but one that applies squarely to workplace investigations."

You can see his other investigation postings on his site here.

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

The Uncooperative Witness - In the course of your investigations you will undoubtedly run into the witness who does not want to participate.  What do you do?   First, never prevent the witness from leaving if he/she does not want to participate.  Explain the importance of participating and that you are trying to obtain the facts.  However, if they want to leave, let them.  Second, be sure to remind the witness about the non-retaliation provisions of your policy (go check now to make sure it's there!) in they event their resistance is based upon fear of retaliation from others for participating in the investigation.  If the resistance is because the witness does not want to "rat" on a friend, instruct the witness that as the gatherer of the facts, you need to obtain as much information as you can.  You should also be sure that you have written in your policies that employees are required to participate in investigations.  Then when the employee continues to refuse, you can tell him/her that refusal is a violation of the policy and the employee can/will be subject to discipline.

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

Ed provided a comment to my last post on workplace investigations regarding the idea of disposing notes once the final report is prepared.  He raises an interesting point - how can the HR person who destroyed the notes prove that the summary report really is a truthful summary of the investigation?  He further notes that Plaintiff's counsel would have a field day with this. 

His comment points out what may not be obvious.  The internal HR person is naturally in a position to be challenged based upon the premise that he/she is not truly objective.  One plaintiff's attorney I know referred to internal investigation done by insiders or defense counsel as one big "white wash" or an attempt to cover up as much as possible.  Those of us who do investigations as outsiders build our reputations on a history of being objective, and not being beholden to others.  In other words, it makes no difference to me what I find out in an investigation, I'm looking for the truth.  I have no stake in the outcome.

In connection with investigatory notes, unfortunately I have seen them do more harm than good.  For example, I've seen people take notes for some but not all interviewees.  I've seen some notes type written, some hand written, some written on hotel napkins, etc., etc.  The problem becomes that at the end of the day the investigator cannot recall who was interviewed, in what order, for how long, about what and cannot explain inconsistencies in the interviews (i.e. why did you take hand written notes for some, and not for others?).  The result is that the investigation looks more like a patch work quilt that can be easily challenged for it's seeming lack of inconsistency, inferring that perhaps something else was going on.

I'd love to hear more thoughts on the subject of notes....

Posted By Diane Pfadenhauer In Workplace Investigations 1 Comments | Permalink

What to do with the file? - You've interviewed your witness, reviewed your evidence, drafted a memo to the employees in questions and you now have a, presumably, large file containing witness statements, piles of paper and various notes and reports.  Here's what you need to do:

1.  Take the notes, which are not complete and summarize them into a logical format.  Toss the scribble.

2.  Make sure you have everything you need in the file to document your actions and upon which you based your interviews and questions.

3.  Put the file is a separate locked cabinet away from the employee file.  Next time you have a complaint, look though this cabinet to determine if any of the accused employees have a history.

Posted By Diane Pfadenhauer In Workplace Investigations 2 Comments | Permalink

The FACT Act - Those involved in investigating employee misconduct had been stymied by the Federal Trade Commission's (FTC) interpretation of the requirements of the Fair Credit Reporting Act since the dreaded Vail Letter, back in 1999.  In that letter, an attorney for the FTC interpreted the law to require employers who used third parties to investigate allegations of harassment and misconduct to comply with the requirements of the Fair Credit Reporting Act (FCRA), deeming them investigative consumer reports under the law.   What this meant for employers is that it now required them to seek consent from the accused to conduct an investigation.   In addition, it required providing that individual with a full, detailed report of the investigation prior to taking any adverse action.

The FACT Act, which became effective in March 2004, amended certain provisions of the FCRA. Specifically, the law changed those requirements, ensuring that employers can conduct a fair and impartial investigation without compromising confidentiality and the investigatory process.

The new requirements apply to investigations of suspected misconduct, violations of laws or regulations, complaints of harassment or discrimination, and violations of pre-existing written policies of the employer.

What You Need to Know:

• Under the new law, certain investigations are now no longer considered investigative consumer reports.   This means that with the use of outside investigators, employers no longer have to obtain prior consent from the   accused employee prior to conducting the investigation.   
• Employers are no longer required to provide a detailed report to the individual containing sensitive employee information and the names of interviewed parties.  However, where employers are required provide the accused with a summary of the investigation, they may omit these sensitive details.  Employers no longer have to provide this summary prior to taking adverse action.  Thus, if the results of the investigation warrant discipline or termination, the employer may take that action and provide the summary report to the employee thereafter.   
• In an effort to be sensitive to the need for confidentiality in investigations, any report must only be disclosed to the employer or its agent or legal authorities.

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

Whether or Not to Launch an Investigation - A recent article at Law.com discusses the two major decisions an in-house counsel will have to make in the post-Enron, whistle-blowing age in which we now live.  The first is whether to launch an internal investigation in response to an allegation of wrongdoing and the second is where or not to hire outside counsel to conduct the investigation.

The article describes the "especially dire" consequences of failing to conduct an investigation based upon SEC and Department of Justice assessments of companies' actions.  The article describes the element of credibility of the complaint as being pivotal in the decision of whether an investigation should proceed. 

When deciding whether in-house or outside counsel will conduct the investigation, the article takes the position that the issue of credibility poses a serious consideration for the company, but in this instance with respect to the credibility of the investigation itself.   Both the SEC and the Justice Department look for a certain level of objectivity or independence in workplace investigations. "Where there is a legitimate concern that the integrity of the investigation might be attacked, outside lawyers should lead the investigation"

Interesting perspective and well worth the read.  I would suggest that these principles relate not only to SEC and DOJ investigations.  The workplace has evolved to the point where employees and other stakeholder expect disclosure, a sense of fairness, and neutrality in the handling of workplace issues.

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

What the EEOC Says About Investigations - Many people wonder where to find the guidance provided by Equal Employment Opportunity Commission on the subject of workplace investigations.  Well.... here it is.  This guidance came out of the Ellerth and Faragher cases (to be discussed in a later post).  It's somewhat hard to find as it is discussed in a document on the subject of the liability of employers for harassment by a supervisor.  In any event, they go on, deep in the document, to provide their take on effective workplace investigations.  Some tips worth knowing (as this is what the EEOC will be looking for when it conducts it's own investigation of a claim):

1. The employer should set up a process for a "prompt, thorough, and impartial" investigation.
2. Where an investigation is necessary, "it should be launched immediately."
3. The employer should be prepared to "undertake intermediate measures before completing the investigation to ensure that further harassment does not occur."
4. The employer should "ensure that the individual who conducts the investigation will objectively gather and consider the relevant facts....and should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility."

I have authored an article on the subject of workplace investigations coming out in an upcoming edition of HR Advisor Journal (published by Thomson-West) advocating the use of third parties to conduct investigations.  My belief is that using a third party will enable an employer to more easily satisfy these guidelines.

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

Confidentiality - The subject of confidentiality in investigations is worthy of several posts as there are a variety of issues.  For our purposes today, imagine the following scenario:  an employee feels he is the victim of discrimination or feels that he is being mistreated in some way in the workplace.  He approaches a member of management and says  "Something is bothering me but I don't want you to tell anyone about it."  The manager has two choices. 

1. The first is the wrong choice.  That would be to stop the employee, literally mid sentence, and to say something like "Don't tell me, 'cause if you do, I'll have to report it to HR."  Why is this a bad option?  Because now the employer is on notice that something is amiss.  During the deposition, plaintiff counsel will ask the manager about his conversation with the employee.  I can see it now.  A beautiful picture will be painted portraying the supervisor as on notice, disinterested, and self-serving even though the supervisor may be been trying to maintain the confidentiality of the issue.
2. The right option is to advise the employee that as a manager one of his obligations to to attempt to resolve issues which may arise in the workplace (after all, aren't managers supposed to help foster an environment free of misconduct and one where employees can get their jobs done?).  He should encourage the employee to discuss his concerns and advise him that as a member of management he has certain obligations (to look into the matter further, to report it to HR, etc.).  He should try to put the employee at ease and work diligently to help to resolve the problem.  In the event the employee still does not want to talk, then the supervisor should follow the guidelines established by the company - which are typically to advise HR who would likely follow up with the employee.  Imagine the portrait being painted now - the manager has taken sincere steps to help the employee, reached out to HR and there is further follow up to ascertain if there is a problem.

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

What Prompts an Investigation? - I recently had a conversation with someone who proudly showed me his company's EEO/Harassment policy.  We were discussing a variety of scenarios that might occur to prompt an investigation.  In other words, what puts the employer on notice that something is amiss and needs to be addressed?  He took the position that unless an employee completed his company's "complaint form," thereby filing a formal complaint under the policy, he had no obligation to investigate or, at a minimum, look into the possibility of a policy violation based upon receiving some sort of notice of a possible problem.  Sadly, I assured him that his position was clearly wrong.  Employees don't need to file "formal complaints" under a policy to put an employer on notice that something may be going on which requires further inquiry. 

If the employer receives a report from another employee, is advised by a member of management, overhears something, or stumbles upon or observes inappropriate behavior, this is likely sufficient to require further inquiry to determine whether a full investigation is in order.

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

Policies to Review - Many times when conducting a workplace investigation, the HR professional first grabs the EEO policy (assuming its an EEO complaint).  Don't stop there.  There a whole list of other policies to look at before you dive into your investigation.  Actually, you should make sure you have some of these policies in place before you are under the gun of having to do an investigation - it will make your investigation easier:

1. Your EEO/Harassment policy - this is a no-brainer
2. Workplace Searches - Do you have a policy that allows you to conduct searches anywhere in the workplace (even on PC's and other electronic devices)?
3. Do you require employees to participate in an investigation with penalties for refusing to do so?
4. Discipline/Discharge - If you decide to invoke discipline after the investigation is concluded, you better be following this policy if you have one.
5. Code of Conduct/Ethics - A violation of your EEO/Harassment policy may or may not be a violation of this policy and vice versa.
6. Privacy - Do you have policies that warn employees to avoid the expectation of privacy in the workplace - computers, desks, etc...
7. Violence - Do you and your managers understand the potential for violence associated with misconduct?
8. Technology - What do your policies say to your employees about use of email and other technology platforms in your workplace?  You may have a policy violation here as well.

The key here is the following:

• With respect to all policies, look at what types of misconduct are covered by the policies and the obligations and roles of management and employees.
• Make sure your policies are disseminated and UNDERSTOOD by your managers and employees so that you can say that your employees are really on notice as to the existence of and their obligations under each of the policies.
• Review your own guidelines and past practice with respect to the policies - what steps do your policies say you will take?  Follow them!
• All of the policies need to work together.  Take a step back and review all of them, before a problem occurs, to make sure there are no conflicts between them and to ensure they provide the maximum flexibility with regard to conducting and investigation.

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

Setting the stage or otherwise preparing for an investigation - When conducting a workplace investigation there are number of items to address prior to diving in and interviewing employees.  Generally, I would separate them into several areas:

1.  How to deal with the accuser (and/or other employees) - this can include removal, if warranted, for his/her safety,  referral to the company Employee Assistance Program where appropriate, continued oversight of the workplace by management, alerting management in the area of relevant information where necessary.  Many times HR or legal will begin an investigation and key management in an area have not been alerted as to the serious nature of the issue at hand.  They view the intervention of the investigator as a distraction and intrusive.  Planning for the investigation and reaching out to key personnel will go a long way to help ensure a smooth investigation.

2. How to deal with the accused employee(s) - this includes removing the accused from the workplace to prevent any further disruption, to avoid any chance of retaliation and to prevent further contact with the complainant.  Generally, you would remove the accused by placing him/her on administrative leave - paid or unpaid.  If you choose unpaid, be sure to consider the various wage and hour implications if the accused is an exempt employees.  Again, engaging key management in the area is important.  Without understanding the seriousness of the alleged offense, they may view removal as unnecessary and disagree with the process.  this can undermine your investigation.

3.  Developing an investigation plan - Who will conduct the investigation? Who will be interviewed?  What documents and other evidence must be reviewed?  What policies are relevant?  What follow up will be done at the conclusion of the investigation?  Many of these will be the subject of later posts, in more detail.  But, it is necessary to have, at a minimum, a plan or outline of the items you need to address during your investigation.  Without this, you may easily lose focus and forget to address some key areas.

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

The Purpose of An Investigation - When internal management learns of alleged employee misconduct, they respond with an internal investigation.  However, the process of learning the facts, drawing conclusions and doling out discipline are really three distinct areas which must be thought of separately.  For example, when someone is accused of discrimination or harassment in the workplace by a fellow employee, it is often the human resources professional who conducts the investigation.  That same professional then draws conclusions, and handles discipline.  The problem with this approach is that one individual may play the role of fact finder, judge, and jury. 

The purpose of the investigation is to find the facts: what happened, the details, who did and said what, how, why, etc., etc.  When facing an investigation in your organization, my suggestion is to think of these separately.  If you go into an investigation thinking about how you're going to discipline the accused if found to have violated your policy, you've got it all wrong.  You job is to gather the facts objectively and as fairly as possible.  Someone else should be the judge and the jury.  By allowing yourself to play all three roles, you risk losing objectivity.

Posted By Diane Pfadenhauer In Workplace Investigations 1 Comments | Permalink

Scribes, note takers and transcripts in an investigation - When conducting an investigation, investigators often try to capture everything that was said by the interviewee.  One of the ways this is done is when the investigator asks an administrative person to join him/her to take notes during the investigatory interview.  Sometimes, the investigator will go so far as to ask the other person to record everything that was said - as if a scribe.  My opinion - BAD IDEA!  There are several problems with this approach:

1.  The note taker will invariably miss something or misquote something that was said.  If the document that the note taker prepared is offered as evidence to show what happened in the interview and it is incomplete or inaccurate, there's a problem.  Also, it can be further challenged by claiming that if something is not in the document, then it didn't occur.

2.  The second problem with the note taker is that it double teams the interview.  Having employees open up is difficult enough.  With it looking like two against one, it's even harder.  As for the subject of two interviewers, I'll address that later....

My recommendation:  As a matter of standard practice, the interviewer should take his or her own notes.  Often these notes may be points or bullets that are meant to jog the memory of the interviewer when he/she drafts her report and thus, not meant to be a complete "transcript" of the interview.  Therefore, IMMEDIATELY after the interview, he/she should draft a summary report of the interview that adequately describes what occurred in the interview, recognizing that the notes may be incomplete. The scribbles and notes from the interview are then tossed as the summary report is intended to serve as a summation of the interview.

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

Part of my practice includes conducting workplace investigations in instances of allegations of employee misconduct.  Typically, these investigations surround the employer's sexual harassment/discrimination policy.  After twenty years in the corporate world in human resources positions and as in-house labor and employment counsel, it's should be pretty obvious that I have developed opinions on this subject (and others, but we'll save those for later).  Often my views can be somewhat contrarian and I have been publishing articles (here and here) on a variety of topics of interest to HR practitioners and employment lawyers.  Some of  myother articles do not appear on the web due to copyright restrictions.

In addition, I have done and have been asked to do several more CLE (continuing legal education) programs for various Bar Associations in the NY area on the subject of workplace investigations.  Ironically, I've found that often HR professionals are accused of doing poor investigations or being ill-equipped to conduct an investigation.  Alas, in my travels in the attorney CLE circuit, I've found that many attorneys are as equally ill-equipped.  In my quest to make my my little corner of the world a better place, I've decided to do a series of posts of this topic.

I will be addressing things like how not to get burned, how to make the investigation more effective, using lawyers or staff professionals, etc.  So, periodically, I'll be posting Pfadenhauer's Tips on Improving the Effectiveness of Workplace Investigations.  OK, the name isn't really that great, but hopefully the substance of the information will be.  Stay tuned....

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink