Conducting Investigations

Conducting Investigations Ginger D. Schroder, Esq. Schroder, Joseph & Associates, LLP

Discussion Topics • Standards for investigation • Establish importance of effective investigation skills • Skills necessary for conducting an effective internal investigation • When to investigate • Who should investigate • How should the investigation be conducted-special issues • How should the evidence be evaluated • Determining what corrective action to take

Standards of Proof • “Beyond a reasonable doubt” • Clear and convincing evidence • Preponderance of the evidence • Good faith investigation / reasonable conclusion • Issue of investigation supporting a decision that must be held to a higher standard

Common Standard • Most of the arbitrated cases involving discipline/discharge (69.68 percent), .... Applied a “preponderance of the evidence” proof standard • In cases involving quasi-criminal or criminal conduct or stigmatizing behavior, many arbitrators apply a higher standard of proof, typically “clear and convincing.”

EEO Investigations Focus on alleged victim & work environment EEOC guidelines Union Situations Focus on violation of published house rules “Just Cause” test Contract Employees Focus is on breach of contract Bound by contract procedures All Others Focus on legitimate, non-discriminatory reason Procedures at employer’s discretion “Fairness” seems to be standard Exceptions for certain statutes (USERRA, UI, COBRA) Wrongful behavior Investigation Standards

Identify the Purpose of the Investigation • Why is the investigation necessary? • Internal formal complaint or grievance • Anonymous complaint • EEOC, DOL, OSHA, NYSHRD, notice • “This isn’t a complaint” complaint • Changes in conduct, behavior, productivity, attitude • Losses • Misconduct • Other?

Identify the Purpose of the Investigation (cont.) • What is the investigation intended to accomplish? • Uncover and stop employee misconduct • Establish record for decisionmaking • Reveal weaknesses in employer policies, procedures, processes • Prevent charge-filing or litigation • Avoid negative publicity • Limit liability for organization and managers

Preparing for the Investigation • It is critical that the any necessary investigation be prompt and effective! • Time is often of the essence • EEO cases require immediate investigation • Union and individual contracts generally have time frames • Long lag times will affect your credibility

When To Investigate • When you knew or should have known that possible misconduct has occurred • “Formal” complaint is not necessary • No such thing as “off the record” or “confidential” as supervisor/manager knowledge is imputed to employer

Employee initiates issue Determine: Employee misunderstands the organization’s policy There is a lack of communication between employee and another (supervisor) No other facts are needed to resolve the issue No other outside resources are necessary to resolve the issue Issue is susceptible to informal resolution Therefore, no internal investigation is necessary Is a Formal Investigation Necessary?

Employee initiates issue You determine: You need additional facts Employee cannot supply you with facts You need to speak to others You need the assistance or input from those with special expertise Therefore, you initiate an internal investigation Is a Formal Investigation Necessary?

SELECT INVESTIGATOR

Instilling Confidence in the System and You---Identify bias and concerns about bias and remedy same to the extent feasible • “To tell you the truth, I don’t feel that you are the right person to handle this issue. Only _____________ can understand the kind of discrimination minorities in this organization face every day of the week.”

Select the Appropriate Investigator • Criteria for selection: • Reputation for honesty, credibility and confidentiality • Unbiased • General knowledge of legal issues • Training or experience in conducting investigations • Ability to serve as Company witness, if necessary • Attorney-Client privilege?

Who Should Investigate • Supervisors/Managers/Senior Administration • Fine for day-to-day infractions, union & contract situations • Need to be trained on procedure & standards • Human Resources Managers • Preferable for EEO investigations • Need to receive specialized training

When You May Want Counsel To Investigate • If allegations involve high-level official and organization needs to ensure that the investigation is above reproach; • If allegations are extremely serious; • If litigation is anticipated.

Outside Investigators • Outside Investigators • Limit to special situations • Conflict situations • Highly sensitive situations • As noted prior, you may use attorneys internal or otherwise • They will not be able to defend the employer in any subsequent litigation • Need someone with qualifications and experience in the field • Will be held responsible if mistakes are made • They should be good witnesses (credible, knowledgeable, organized, thorough)

Prepare a Strategy • Prepare timeline for investigation • Consider order of investigative actions • Consider order of witnesses • Do you need to speak to other witnesses before the accused? • Should one employee be interviewed before another to avoid possible influencing of testimony? • Can you compel the accused to an interview-teacher situations, public employees and crimes • Decide parameters of confidentiality

THE PROCESS • Identify the scope of the investigation • Outline the organization’s expectations for the employee raising the issue • If EEO or conflict between employees--determine if it’s necessary to separate alleged “victim” and the “accused” and interview the relevant witnesses • Gather and review relevant documents-often helpful in advance • Identify any legal issues and seek advice-examples later • Evaluate the evidence & decide • Determine appropriate remedial action and type of post investigatory documentation to prepare

Identify the Documents to Be Reviewed • Personnel documents (warnings, evaluations, etc.) • Timecards and schedules • Manager memos, notes about the incident • Business documents • Expense reports/receipts • Journals, diaries, notes • Security tapes/videos • Consider Social media/electronic communication (e-mails/texts) • ???

Identify Any Other Investigative Actions to Be Taken • Internet Searches • Video Surveillance • Internet and Computer Monitoring • Telephone Monitoring • Email, Texts, IM Monitoring • GPS Monitoring • Searches • Lie detectors

EEO Situations Accused receive policy and/or training Alleged victim harassed or discriminated against Work environment tainted Union Situations Union receive rules Accused receive rules Did accused violate rules Contract Employee Contract may contain duties & performance standards Was contract violated Others Employee notified of law, policy, procedure, performance standard Job description Employee handbook Policies or procedures Law Did employee violate the above Scope of Investigation

Interviews • Who should be interviewed • Third party reporter • Alleged victim • Accused/wrongdoer (note special rights/non-self incrimination situations with teachers/public employees) • Witnesses identified by parties • How should the interviews be done • One by one • Private • May bring “representative” in certain situations • Unionized employees entitled to have representative in certain situations (page 25) or by contract as a right • Non-union employees not required

Representation at Interview • The right to be informed, in advance, of the subject matter of disciplinary interviews. • The potential right to union representation at such an interview.

The role of the union representative • Will ask for time to talk in private before the meeting; • Will take notes & record the names, dates questions; • Will attempt to secure "due process" and fair treatment; • Will work to make sure the grievant/interviewee is protected; • Will object to any attempts to anger or frighten the interviewee; • Will call a “timeout” to caucus or recess as needed; • Will ask for questions to be rephrased or explained as necessary; • Will make no permanent or undo-able decisions at that interview; • Cannot impede, interfere in the process of obtaining information

Cadet Rights 1. On February 1, 1994, a 3020a hearing panel determined that Andre Cadet, a tenured teacher, was guilty of misconduct with regard to his romantic relationship with a female student. The panel dismissed the charge of insubordination related to Cadet's refusal to answer questions before the Special Commissioner of Investigations (SCI). 2. On April 1, 1996, the Appeal of the Board of Education of the City School District of the City of New York against Andre Cadet was held. 3. While the Commissioner of Education upheld the appeal in part, the Commissioner agreed with the conclusion of the hearing panel chair that the authority cited by the New York City School District regarding Cadet's obligation to testify before the SCI was in conflict with Education Law 3020-a, since that statute is the sole method by which tenured teachers can be disciplined in New York State.

4. As a result of this decision, a teacher need not answer questions in any pre-hearing investigation, which precedes a 3020-a proceeding. 5. If a tenured teacher is asked questions in an investigation that the teacher believes could lead to disciplinary action, the teacher has the right to assert Cadet. By doing so, the teacher cannot be held insubordinate when refusing to answer such questions.

Interviews • What should be discussed • Confidentiality, no retaliation (EEO cases) • Need for honesty • Details (dates, times, description of what occurred, parties involved, witnesses, documents) • What to expect after investigation • Instructions on who to contact after interview if they have questions or concerns (EEO cases)

Contracting for expectations Showing sensitivity toward interviewee Putting interviewee at ease With the Witness

Interview Questions • Ask open-ended questions • Ask follow-up questions • Ask repetitive questions • Look for non-verbal signs • Avoid loaded questions • Avoid accusatory questions • Avoid compound questions • Don’t cut off the witness’ answer

Develop the Facts with the Interviewee • Within the relevant time frame, review blocks of time, and for each block establish: • Exactly what happened • When did it happen • Where did it happen • What was said and by whom • Who was present and what do they know • Who might have relevant information • Are there any documents or other evidence

Employee Raising the Issue Ask what the employee raising the issue wants the organization to do - Transfer, counseling/discipline of offender, change policies, training, etc. - Don’t promise what the result will be

Employee Raising the Issue • Issue confirmation with employee raising the issue • Identify issue (confirmation) • Identify facts provided by employee • Confirm these are all issues raised

Meet With Accused • Meet privately and disclose the complaint; • Stress that: • No determination has been made; • Interference with investigation and/or retaliation is misconduct. • Review the allegations and obtain accused party’s responses. • Identify counter-witnesses. • Elicit opinion as to why complainant might be making allegations.

How To Investigate: Interviews • What to watch for • First-hand knowledge versus hearsay or rumor • Credibility & bias • Ability to corroborate testimony of others • What to do • Take notes, summarize statements using witness’s own words • Have witnesses review and make corrections • Signature optional

A Note About Notes • Investigative notes: • Create a record to guide the investigation; • Preserve the record as memories fade. • In making notes: • Strive to be accurate; • Take care to use quotation marks; • Be discreet in your annotations of documents.

Searches, Surveillance and Monitoring • Establish the expectation of privacy • New Jersey v. TLO, 469 US 325 (1985)-4th amendment applies to school districts • Should be reasonable in scope—two fold inquiry, was action justified at its inception and was there a reasonable relationship in the search’s scope to the circumstances that justified the initial interference • Policy can offset privacy expectations

O’Connor v. Ortega, 480 US 709 (1987) • Public Employer • No policy • Search of desk of employee still upheld • Search arose from a reasonable suspicion that search of hospital property would provide evidence of misconduct • Workplace defined as work related areas and items generally in employer’s control • Examples in that case • Differentiated between these public type spaces and the employee’s purse, luggage, briefcase, car • Absent any legitimate regulation or actual practice or procedure an employee has an expectation of privacy in those private items (pages 27-28)

Telephone Call Monitoring • Federal Wiretapping Law prohibits interception of telephone calls. • Exceptions: • Consent – express or implied (from policy and continued employment) • Business purpose

E-Mail Monitoring • Federal Electronic Communications Privacy Act (ECPA) is amendment to Wiretapping Act • Protects e-mail communications in transit • Federal Stored Communications Act • Protects e-mail in storage (in-box) • Service Providers (i.e. employers who provide the e-mail service) are exempted and can monitor emails

E-mail Monitoring (cont.) • Employees tend to think of e-mail as private communication • Organizations must implement a policy to notify employees that e-mail may be monitored and that employees have no right of privacy in their e-mail.

Text Message Monitoring City of Ontario v. Quon – • City reviewed text messages sent on city-provided pagers. Employee sued for invasion of privacy under Federal and California constitutions. • In limited decision, the Supreme Court held that the City’s search was reasonable. • No ruling on whether employees have right of privacy in communications on employer-provided equipment • Recognized employer policies will govern expectations of privacy

Text Message/Instant Message Monitoring • Organizations must implement a policy to notify employees that their text messages may be monitored and that employees have no right of privacy in their text messages. • This should also apply to the use of instant messaging (IM) in the workplace.

Decide Parameters of Confidentiality • Identity of complainant and accused may or may not be material to investigation. • To corroborate specific allegations, generally must reveal identities; • He said/she said, sometimes can obtain information without disclosing identities. • Either way, stress with all interviewees the importance of avoiding discussion/gossip.

Interim Actions

Pre-Investigation Employment Actions • Determine if, at the pre-investigation stage, it is necessary to: • Determine organization’s rights to interim action • Place the complainant on paid leave pending the investigation • Place the accused on leave (paid or unpaid) • Temporarily transfer employees • Be careful – transferring the complainant against his/her wishes can lead to further claims • Change supervisory responsibilities • Address safety concerns

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? Key Points of Consideration

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? Key Points of Consideration

What are the terms of the leave? With pay? Who should he or she contact? What should he or she do during that time? Key Points of Consideration

Reviewing Documents • Which Documents Should Be Reviewed • Documents identified by parties or witnesses • Company records that may corroborate one side or the other • Ask all interviewees for notes taken at any time • Personnel files & discipline records of the parties • Focus first on company records • Precautions with company records • Restricted access to records (medical, EEO) • Email and computer records require policy/notice • Maintaining confidentiality of records

Conducting Investigations