Conducting an Effective Internal Investigation in the United States Tuesday, January 12, 2010 © Employment Law Alliance.

Conducting an Effective Internal Investigation

in the United StatesTuesday, January 12, 2010

© Employment Law Alliance

Presenters

Stephen J. Hirschfeld, Moderator, CEO of the Employment Law Alliance and Partner, Curiale Hirschfeld Kraemer LLP, San Francisco, [email protected]

Michael E. Blue, Ray, Quinney & Nebeker, Salt Lake City, [email protected]

Phyllis G. Cancienne, Baker Donelson, Bearman, Caldwell & Berkowitz, PC, Baton Rouge, [email protected]


Presenters

Leonard Court, Crowe & Dunlevy, Oklahoma City, [email protected]

Kristine Dunne, Arent Fox LLP, Washington, [email protected]

Jon Sogn, Lynn, Jackson, Shultz & Lebrun, P.C., Sioux Falls, [email protected]


Presenters

Patricia L. “Penny” Zobel, DeLisio Moran Geraghty & Zobel, P.C., Anchorage, [email protected]


Introduction

Introduction


Standards of Proof

• Beyond a reasonable doubt

• Clear and convincing evidence

• Preponderance of the evidence

• Good faith investigation/reasonable conclusion


The Initial Meeting – Purpose/Objective

• Instilling confidence in the system and you

• Initial Considerations


The Initial Meeting

• Gathering all material facts:• Who?• What?• When?• Where?• Why?• Determining if formal or informal

investigation is needed


Planning the Investigation:

Important Considerations

• What facts/documents can you unilaterally gather?

• Who should conduct the investigation?

• Who should be interviewed?

• How should the interviews be conducted?


Interim Actions

Interim Actions


Key Points of Consideration

• Will administrative leave take place before or after you confront the accused?

• Will removing the accused make things better or worse?

• Who should you consult beforehand? HR? Legal? Is a risk or threat assessment necessary?



• How will you respond to the accused when asked why removing him or her is necessary?

• What, if anything, should co-workers and members of the public be told about the employee’s departure?



• What are the terms of the leave?

• With pay?

• Whom should he or she contact?

• What should he or she do during that time?


Anticipating Issues that May Arise

• Fifth Amendment/right to remain silent/ duty to cooperate

• Can I get into trouble by cooperating?

• Right to counsel

• Right to union representation

• Minimizing claims of retaliation

• Protecting confidentiality of investigation


Meeting with the Accused

• INITIAL CONSIDERATIONSProfessionalism/mental preparation

• OUTLINE THE ISSUESCarefully analyze all facts

• LIST THE FACTS/CREATE A CHRONOLOGY


Meeting with the Accused

• NOTETAKING IS CRITICALDo the best you can to capture key facts during the interview and complete your notes IMMEDIATELY after the interview is completed while the information is still fresh.


Asking Effective Questions

• Broad to narrow questions

• Leading questions

• Tough questions

• Follow-up questions

• Committing interviewee to a story/ chronology


What if the Accused Denies Wrongdoing?

• Explore possible ill-motives

• Ask:“Do you have any idea why he/she would make this up?”

• Ask:“Have you had any conflicts or problems with him/her?”


Interviewing Witnesses

• Non-cooperative witness

• Witness who loves the limelight

• Witness with an axe to grind


Assessing Credibility

• Demeanor

• Logic/consistency of story

• Corroborating evidence

• Circumstantial evidence


Reaching a Conclusion

• Relevant vs. irrelevant evidence

• Determining what evidence is authentic and believable

• Factoring credibility and ill-motive into the equation

• Putting together the “pieces of the puzzle”


Preparing Your Investigation

Report

• Preparation of the report

• Contents of the report

• Access to the report

• Documentation retention


Attorney-ClientPrivilege

Attorney-Client Privilege


Conclusionand Wrap-Up

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Conducting an Effective Internal Investigation in the United States Tuesday, January 12, 2010 © Employment Law Alliance.

Documents

key facts

key points of consideration

informal investigation

accused notetaking

presenters patricia

presenters stephen

important considerations

material facts