H OGGE L AW

1. HOGGE LAW IMPORTANT CONSIDERATIONS IN CONDUCTING WORKPLACE INVESTIGATIONS Raymond L. Hogge, Jr., Esq. HOGGE LAW Attorneys and Counselors at Law 500 E. Plume Street, Suite 800 Norfolk, Virginia 22510 (757) 961-5400 www.VirginiaLaborLaw.com

2. HOGGE LAW DISCLAIMER: This presentation is intended solely for informational purposes, and does not constitute legal advice.

3. HOGGE LAW General Guidelines for Investigations Plan the investigation before beginning it Prepare written plan Summary of factual and legal issue(s) to be investigated Update plan as investigation progresses

4. HOGGE LAW General Guidelines for Investigations Plan the investigation before beginning it. Identify potential witnesses Employees Non-Employees Customers Vendors Health Care Providers Others

5. HOGGE LAW General Guidelines for Investigations Plan the investigation before beginning it Identify potentially relevant documents Formal complaints Employer policies and handbook Accident, injury and incident reports Incident reports Disciplinary records Employee wage and hour records Medical records

6. HOGGE LAW General Guidelines for Investigations Plan the investigation before beginning it Identify and preserve potential relevant electronically stored information E-mail Voice mail Electronic documents Data in hard drives Data on network Video surveillance records

7. HOGGE LAW General Guidelines for Investigations Who should conduct the investigation: Large Employers: Two member of HR department trained in investigation Small Employers: The person in charge of HR and a member of management Alternative: A professional investigator retained by management

8. HOGGE LAW General Guidelines for Investigations Who should not conduct the investigation: Anyone accused of misconduct An employee without training or experience in conducting investigations The company lawyer - he or she will become a witness

9. HOGGE LAW General Guidelines for Investigations Prepare written report after concluding investigation. Statement of issues investigated. Summary of witness interviews and statements. Summary of documents and other evidence. Findings and conclusions.

10. HOGGE LAW Public Sector Considerations Law Enforcement Officers Procedural Guarantee Act (“Police Officers’ Bill of Rights”) Virginia Code § 9.1-500 et seq. Applies to most police officers except chiefs Does not apply to sheriffs and deputies Applies to any investigation by law enforcement agency which could lead to dismissal, demotion, suspension, or punitive transfer

11. HOGGE LAW Public Sector Considerations Law Enforcement Officers Procedural Guarantee Act (“Police Officers’ Bill of Rights”) Before dismissal or discipline, officer under investigation must be notified in writing of all charges, the basis therefor, and the action which may be taken Agency may immediately suspend officer without pay if continued presence on job is substantial and immediate threat, or for refusal to obey a direct order

12. HOGGE LAW Public Sector Considerations Law Enforcement Officers Procedural Guarantee Act (“Police Officers’ Bill of Rights”) Officer must be given at least 5 days to respond to the charges orally and in writing Officer may be assisted by legal counsel

13. HOGGE LAW Public Sector Considerations Law Enforcement Officers Procedural Guarantee Act (“Police Officers’ Bill of Rights”) Officer cannot be required or asked to disclose officer’s or family’s property, income, sources of income, assets, debts, or personal expenditures unless the information is (a) related to the investigation, (b) necessary to investigate conflict of interest, or (c) required by law

14. HOGGE LAW Public Sector Considerations Law Enforcement Officers Procedural Guarantee Act (“Police Officers’ Bill of Rights”) Drug testing procedure established

15. HOGGE LAW Public Sector Considerations Law Enforcement Officers Procedural Guarantee Act (“Police Officers’ Bill of Rights”) Officer must be given written notice of his right to initiate a grievance under applicable grievance procedure, and must be given copy of grievance procedure upon request Office may proceed under grievance procedure, or law enforcement officers’ procedural guarantees (Va. Code § 9.1-504), but not both

16. HOGGE LAW Public Sector Considerations Law Enforcement Officers Procedural Guarantee Act (“Police Officers’ Bill of Rights”) Before questioning, officer under investigation must be informed of the nature of the investigation and the name and rank of any individual to be present during questioning Questioning of officer under investigation must take place at reasonable time and place

17. HOGGE LAW Public Sector Considerations Garrity Rights Public employees cannot be compelled to incriminate themselves during investigatory interviews conducted by their employer Established by Garrity v. New Jersey, 385 U.S. 493 (1967) Based on 5th Amendment constitutional right against self-incrimination

18. HOGGE LAW Public Sector Considerations Garrity Rights Employer cannot force employee to waive Garrity rights under threat of termination Established by Gardner v. Broderick, 392 U.S. 273 (1968)

19. HOGGE LAW Public Sector Considerations Garrity Rights Employee cannot be fired for refusing to incriminate himself Established by Uniformed Sanitation Men Association v. Commissioner of Sanitation, 392 U.S. 280 (1968)

20. HOGGE LAW Public Sector Considerations Garrity Rights Employee can be fired for refusing to incriminate himself if his statements are immunized from prosecution Established by Uniformed Sanitation Men Association v. Commissioner of Sanitation, 426 F.2d 619 (2d Cir. 1970)

21. HOGGE LAW Public Sector Considerations Garrity Rights To avoid Garrity problems consider using “Garrity notice” that nothing said by witness during interview can be used against the witness for purposes of criminal prosecution

22. HOGGE LAW Public Sector Considerations Loudermill Rights Due process requires that before a public employee can be dismissed from his job he must be notified of the grounds for termination and given a pre-termination meeting in which he has an opportunity to respond Established by Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)

23. HOGGE LAW Public Sector Considerations Loudermill Rights Public employers should coordinate the Loudermill notice and meeting with the employee investigatory interview

24. HOGGE LAW Union Considerations Weingarten Rights Employees represented by a union have a right to union representation during an investigatory interview Established by NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975)

25. HOGGE LAW Discrimination and Harassment Investigations Include in your written anti-discrimination and anti-harassment policies a statement that all reports of discrimination and harassment will be investigated promptly and stating that remedial action will be taken where appropriate.

26. HOGGE LAW Discrimination and Harassment Investigations Adopt a written anti-retaliation policy stating that retaliation against an employee for reporting discrimination or harassment is strictly prohibited.

27. HOGGE LAW Discrimination and Harassment Investigations Adopt a written policy informing employees how and to whom to report discrimination and harassment. Include a by-pass provision - do not require employees to report discrimination to their supervisor if their supervisor is the person accused of discrimination or harassment.

28. HOGGE LAW Discrimination and Harassment Investigations Consider adopting a standard form employees can use to report discrimination and harassment Ask for detailed description of events including names of persons involved, witnesses, dates, and locations Ask for specific type of discrimination alleged (race, sex, etc.) and why they believe it was discrimination Have employee sign and date the form

29. HOGGE LAW Discrimination and Harassment Investigations Investigate reports of discrimination and harassment regardless of whether the employee uses an established form or an established procedure

30. HOGGE LAW Discrimination and Harassment Investigations Adopt a written policy requiring all employees to cooperate in employer discrimination and harassment investigations.

31. HOGGE LAW Discrimination and Harassment Investigations Interview the complaining employee(s) first Be friendly, professional, patient Reassure the employee that the employer takes it seriously and will investigate Do not over-promise confidentiality Find out what the employee wants short-term and long-term Offer to temporarily reassign the employee

32. HOGGE LAW Discrimination and Harassment Investigations Interview the accused employee(s) second Apply the same rules as applied to the reporting party Inform the employee in writing of the accusations and the need for investigation Do not assume guilt or be accusatory; instead, conduct impartial fact-finding Instruct the employee in writing to maintain confidentiality and not to retaliate

33. HOGGE LAW Discrimination and Harassment Investigations Next, interview employee witnesses Explain need for investigation Explain no assumption of wrongdoing Disclose no more information that necessary Focus on employees in physical proximity to alleged events Assess credibility and bias Instruct the employee in writing to maintain confidentiality and not to retaliate

34. HOGGE LAW Discrimination and Harassment Investigations Conduct non-employee interviews if necessary Do non-employee interviews only if necessary, to keep the dispute from becoming public Be careful to avoid defamation (libel, slander) of the accused or the accuser

35. HOGGE LAW Discrimination and Harassment Investigations Conduct follow-up interviews as needed Complaining employee Accused employee Witnesses

36. HOGGE LAW Discrimination and Harassment Investigations Interviews: Start with the general, and work toward the specific Start with “How are things in the shipping department?” Do not start with “Did you see Jack place his arm around Jill and kiss her around 2:30 pm last Tuesday afternoon in the shipping department?

37. HOGGE LAW Discrimination and Harassment Investigations Interviews: Ask the 5 W’s Who? What? When? Where? Why?

38. HOGGE LAW Discrimination and Harassment Investigations Interviews: Listen carefully Listen for small bits of potentially important in formation Listen for other unrelated problems and issues

39. HOGGE LAW Discrimination and Harassment Investigations Interviews: Do Not Interrupt Let the witness finish what he is saying, even if it is rambling and unresponsive. This will make the witness feel you respect him, which in turn will make him more inclined to share information

40. HOGGE LAW Discrimination and Harassment Investigations Interviews: Pin down the facts What does the witness know first-hand? What is second-hand information, gossip, speculation, and assumption? Ask questions such as “How do you know?”, “Did you see that yourself?” and “What were his exact words?” Ask the witness if he could swear to the information under oath

41. HOGGE LAW Discrimination and Harassment Investigations Interviews: The forgetful witness When a witness insists he cannot remember something the evidence suggests he witnessed, ask him questions involving other matters around the same time that he does remember. This may jog his memory, or may establish concealment. Tell him to take a minute … or two, or more... to try to remember.

42. HOGGE LAW Discrimination and Harassment Investigations Interviews: The reluctant witness When a witness refuses to cooperate, explain that assisting the employer in a workplace investigation is not optional, and that refusal to do so is insubordination for which the employee can be disciplined or discharged.

43. HOGGE LAW Discrimination and Harassment Investigations Interviews: Use silence The pressure it exerts is sometimes more compelling than anything that can be spoken.

44. HOGGE LAW Discrimination and Harassment Investigations Written Statements Complaining employee - require Accused employee - require Witnesses - require if testimony crucial

45. HOGGE LAW Discrimination Investigations Determine whether the employee is alleging discrimination, and whether what the employee is describing might indicate discrimination Is one group of employees being treated differently than another group of employees? Or is everyone being treated badly?

46. HOGGE LAW Discrimination Investigations If discrimination is alleged or indicated, determine the basis for the discrimination Race? Sex? Religion? National Origin? Pregnancy? Age? Disability? FMLA? Union Organizing? Whistleblowing?

47. HOGGE LAW Discrimination Investigations If discrimination is occurring, is it unlawful? Discrimination on the basis of disability is unlawful Discrimination on the basis of performance of essential job functions is not

48. HOGGE LAW Discrimination Investigations Americans With Disabilities Act Existence of disability Employee representations Employee activities Medical certification ADAAA amendments to ADA

49. HOGGE LAW Discrimination Investigations Americans With Disabilities Act Essential v. marginal job functions Job descriptions Actual practices Performance evaluations

50. HOGGE LAW Discrimination Investigations Americans With Disabilities Act Accommodation Request Written request Oral request Interactive process