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Proper Procedures in Conducting HR Workplace Investigations*
prepared for
Pennsylvania Chamber of Business and IndustryHuman Resources Roundtable
presented by
Jonathan A. Segal, Esq.*No statements made in this seminar or in the PowerPoint or other materials should be construed as legal advice or as pertaining to specific factual situations. Further, participation in this seminar or any question and
answer (during or after the seminar) does not establish an attorney-client relationship between Duane Morris LLP and any participant (or his or her employer).
DM2/4209938.1
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PART I
2
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Confidentiality and Investigations
1. Importance of Confidentialitya. Minimizes the ability of any individual to
undermine the investigation by destroying evidence or creating a cover-up
b. Limits the potential for actual, potential or perceived retaliation
c. Protects the complainant from conversations that may make him/her uncomfortable
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Confidentiality and Investigations
2. Recent Cases/Guidancea. NLRB (Banner)
i. The employer suggested that employees keep the investigation confidential
ii. The employer did not impose any rule or mandate
iii. The employer’s justification: to protect the integrity of the investigatory process
vi. Note: NLRA does not cover supervisors and managers as specifically defined by the NLRA; they are not employees under the Act so you can silence them (unless another law says you can’t)
vii. Status of Banner• Case on appeal, plus• Question as to whether Banner is good law in light of
appellate court finding that Board does not have constitutionally-appointed quorum to act
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Confidentiality and Investigations
2. Recent Cases/Guidance (continued)
b. Civil Rights Lawsi. Examples: Title VII, ADA, ADEA, GINA
ii. Civil rights laws define employees subject to protection broader than the NLRA to include supervisors and managers
iii. Supervisors and managers who wish to share concerns about discrimination, harassment or retaliation may have protection under the civil rights laws, even though they are not protected under the NLRA
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Confidentiality and Investigations
3. Risk Balancing:a. Under NLRA (Section 7 rights are not absolute)
b. NLRA v other laws
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Confidentiality and Investigations
4. Possible Circumstances Where Employees May be Instructed to Keep Investigation Confidentiala. NLRB raised four (4) possible circumstances
i. Whether the witnesses need protection, for example:• Safety concerns (not specifically mentioned in case)• Retaliation concerns (not specifically mentioned in
case)
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Confidentiality and Investigations
4. Possible Circumstances Where Employees May be Instructed to Keep Investigation Confidential (continued)
a. NLRB raised four (4) possible circumstances:ii. Whether evidence is in danger of being
destroyed
iii. Whether testimony is in fear of being fabricated
iv. Whether there is a need to prevent a cover-up
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Confidentiality and Investigations
4. Possible Circumstances Where Employees May be Instructed to Keep Investigation Confidential (continued)
b. Other possible exceptions may include (although not specifically mentioned by NLRB but may be consistent with obligations under other laws)i. Involvement of and at direction of police
ii. Allegations involve other employees whom company has not yet interviewed
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Confidentiality and Investigations
4. Possible Circumstances Where Employees May be Instructed to Keep Investigation Confidential (continued)
b. Other possible exceptions may include (although not specifically mentioned by NLRB but may be consistent with obligations under other laws)iii. Allegations contain confidential information about
others, such as medical condition about another employee
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Confidentiality and Investigations
4. Possible Circumstances Where Employees May be Instructed to Keep Investigation Confidential (continued)
b. Other possible exceptions may include (although not specifically mentioned by NLRB but may be consistent with obligations under other laws)iv. Excessive talk is interfering with or may interfere
with investigation
v. Concern about other liability (for example, defamation)
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Confidentiality and Investigations
5. Variablesa. Nature of Instruction
i. Request
ii. Request but make clear not requirement
iii. Requirement
b. Timing of Instructioni. Proactively
ii. Reactively
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Confidentiality and Investigations
6. Options a. Individualized assessment under Banner for
each individual in each investigation (and document same)i. Ideal, legally
ii. But is it practical operationally?
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Confidentiality and Investigations
6. Options (continued)
b. Take no Banner risk and remain silent on confidentialityi. Avoids NLRA risk
ii. But leaves open legal and other risks
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Confidentiality and Investigations
6. Options (continued)
c. Take some Banner risk and issue instruction, but take steps to minimize risk, such asi. Suggestion, not requirement (court may focus on
distinction)
ii. Explain legal protections instructed designed to safeguard (for example, to prevent retaliation)
iii. No adverse action for breach, unless approved by HR/legal
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Confidentiality and Investigations
6. Options (continued)
d. State Company’s position on confidentialityi. Explain why Company will disclose on need to
know basis only -- meta message
ii. Possible exception: accused (instruction)
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Confidentiality and Investigations
6. Options (continued)
e. Verso Paper (Region 30)
i. Language at issue: Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including I
immediate termination.
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Confidentiality and Investigations
6. Options (continued)
e. Verso Paperii. Regional Director upheld first two sentences
iii. Consider using first two sentences
iv. May want to add “For these and other reasons, the Company is keeping as confidential as possible.”
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PART II
21
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When to Investigate?
1. Investigate if:a. Employee brings complaint directly to HR (notice to
managers and supervisors)
b. Manager/supervisor reports (as required) a complaint made to him or her by employee
c. Employee reports complaint by co-worker
d. Anonymous complaint capable of investigation
e. Constructive discharge allegations
f. Complaint upon involuntary termination
g. Complaint filed with administrative agency
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When to Investigate?
1. Investigate if: (continued)
h. Apparent pattern
i. Social media postings of harassing/discriminatory/retaliatory nature
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When to Investigate?
2. What if employee requests that there be no investigation?a. Tangible employment action: duty to
investigate
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When to Investigate?
2. What if employee requests that there be no investigation? (continued)
b. No tangible employment action alleged (environmental only):i. Presumption in favor of investigating
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When to Investigate?
2. What if employee requests that there be no investigation? b. No tangible employment action alleged
(environmental only): (continued)
ii. Factors to consider (include but are not limited to):• Severity• Pervasiveness• Whether others impacted• Whether other complaints by or against• Positions of parties• When and where• Trust
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When to Investigate?
2. What if employee requests that there be no investigation? b. No tangible employment action alleged
(environmental only): (continued)
iii. If don’t investigate:• Document basis in memo to employee (not just to file)• Follow-up with employee• Observation of workplace behaviors• Empowerment tools
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Who Should Investigate?
1. Refrain from participating in investigation if actual, potential or perceived conflict of interest, e.g.:a. Ethical conflict (attorney)
b. Personal relationship with either party
c. Necessary witness to any of the material events
d. Don’t think you can be objective
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Who Should Investigate?
2. If allegations are very serious in terms of either severity or pervasiveness or involve senior officer, consider investigation by inside or outside counsel or outside human resources consultant
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General Guidelines
1. Rolea. Representative of management
b. Not advocate for any individual
c. Be empathetic but neutral in your questions and reactions
d. Take every complaint seriously
e. Demonstrate actual and apparent objectivity
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General Guidelines
2. Avoid legal or conclusory labels, such asa. Harassment
b. Harasser
c. Victim
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General Guidelines
3. Importance of timelinessa. Commencement of Investigation
b. Completion of Investigation
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General Guidelines
4. Questionsa. Easy, background questions first
b. Questions funneli. Start out open ended
ii. Become progressively more targeted
c. Behavioral (not legal)
d. Non-leading
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Interview of Complainant
1. Explain process – emphasize:a. Truthfulness
b. Confidentiality
c. Non-retaliation
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Interview of Complainant
2. Core questions as to each allegation of environmental harassment:a. Who?
b. What?
c. How?
d. When?
e. Where?
f. Your response?
g. Witnesses?
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Interview of Complainant
3. Core questions as to each allegedly unlawful tangible employment action:a. What decision?
b. Who made decision?
c. Why does employee believe decision was unlawfully motivated?i. What was said?
ii. What was done?
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Interview of Complainant
4. Follow-up questions in all investigations:a. Anything else? (Invite back if subsequent
recollection)
b. Prior complaints to person with authority? (Define persons with authority)
c. Other employees with whom discussed concerns?
d. Supporting documentation?
e. Relief seeking (goal/objective)?
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Interview of Complainant
5. Conclude with:a. Nature of follow-up
b. Importance of confidentiality
c. Assurance of non-retaliation
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Accused
1. Explain the process – emphasize:a. Truthfulness
b. Confidentiality
c. Non-retaliation
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Accused
2. Disclose identity of complainanta. General rule – yes
b. Possible exceptions may include, but are not limited to:i. Public event
ii. Clear pattern (of private events)
iii. Significant safety concern
iv. Significant retaliation concerns
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Accused
3. As for environmental harassment, review each allegation – 1 by 1a. Ask general questions first; become more
targeted as necessary
b. Distinguish between:i. Don’t recall whether it occurred
ii. Recall that it did not occur
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Accused
4. For each allegedly unlawful tangible employment action:a. Determine who was decision maker(s)
b. Ask decision maker(s) directly about their motives
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Accused
5. Emphasizea. Non-retaliation
b. Confidentiality
c. Non-interference
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Witnesses
1. Explain the process – emphasize:a. Truthfulness
b. Confidentiality
c. Non-retaliationi. Prohibition
ii. Protection
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Witnesses
2. Interviewsa. Disclose only “need to know” information
b. Focus on specific facts
c. Draw distinction between:i. Don’t recall whether it occurred
ii. Recall that it did not occur
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Decision Making
1. Possible conclusions as to each allegation of environmental harassment:a. Occurred and inappropriate
b. Occurred but not inappropriate
c. Did not occur
d. Do not know whether occurred
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Decision Making
2. Possible conclusions with regard to each challenged tangible employment action:a. Legitimate reason
i. Fair
ii. Unfair
b. Illegitimate reason
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Decision Making
3. Documenting decision:a. Avoid legal label, wherever possible
b. Document credibility finding and basis for same
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Decision Making
4. Documenting decision: (continued)
c. Factors to consider in making credibility determinations (include but are not limited to):i. Consistency
ii. Body Language
iii. Timing
iv. Corroboration
v. Other complaints
vi. History of veracity
vii. Nature of denial
viii. Memory
ix. Make sense
x. Other
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Corrective Action (If Applicable)
1. Potential corrective actions:a. Reverse decision (and make individual whole)
b. Written reprimand/discipline
c. Mandatory training/behavioral counseling
d. Financial penalty (FLSA considerations)
e. Suspension (FLSA considerations)
f. Work or other restrictions
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Corrective Action (If Applicable)
1. Potential corrective actions: (continued)
g. Demotion with reduction in pay
h. Oversight of employment decisions
i. Termination of employment
j. Termination of other relationship
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Corrective Action (If Applicable)
2. Factors to considera. Severity
b. Pervasiveness
c. Prior indication that unwelcome
d. Prior warnings
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Corrective Action (If Applicable)
2. Factors to consider (continued)
e. Position
f. Responsiveness to counseling/discipline
g. Intent (as a mitigating or aggravating factor)
h. Consistency (how other similar situations have been handled)
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Retaliation
1. Prevent and correct unlawful retaliation againsta. Complainant
b. Witnesses
c. Others who participate in investigatory process
d. Others who are associated with complainant (e.g., spouse or child)
Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership