Ray Hogge 8-14-2014 - VirginiaLaborLaw.com

Report
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
HOGGE LAW
DISCLAIMER:
This presentation is intended solely for informational
purposes, and does not constitute legal advice.
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
HOGGE LAW
General Guidelines for Investigations
Plan the investigation before beginning it.
• Identify potential witnesses
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Employees
Non-Employees
Customers
Vendors
Health Care Providers
Others
HOGGE LAW
General Guidelines for Investigations
Plan the investigation before beginning it
• Identify potentially relevant documents
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Formal complaints
Employer policies and handbook
Accident, injury and incident reports
Incident reports
Disciplinary records
Employee wage and hour records
Medical records
HOGGE LAW
General Guidelines for Investigations
Plan the investigation before beginning it
• Identify and preserve potential relevant
electronically stored information
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E-mail
Voice mail
Electronic documents
Data in hard drives
Data on network
Video surveillance records
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
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
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.
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
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
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
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
HOGGE LAW
Public Sector Considerations
Law Enforcement Officers Procedural Guarantee
Act (“Police Officers’ Bill of Rights”)
• Drug testing procedure established
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
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
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
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)
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)
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)
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
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)
HOGGE LAW
Public Sector Considerations
Loudermill Rights
• Public employers should coordinate the
Loudermill notice and meeting with the
employee investigatory interview
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)
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.
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.
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.
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
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
HOGGE LAW
Discrimination and Harassment Investigations
Adopt a written policy requiring all employees
to cooperate in employer discrimination and
harassment investigations.
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 shortterm and long-term
• Offer to temporarily reassign the employee
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
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
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
HOGGE LAW
Discrimination and Harassment Investigations
Conduct follow-up interviews as needed
• Complaining employee
• Accused employee
• Witnesses
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?
HOGGE LAW
Discrimination and Harassment Investigations
Interviews: Ask the 5 W’s
• Who?
• What?
• When?
• Where?
• Why?
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
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
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
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.
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.
HOGGE LAW
Discrimination and Harassment Investigations
Interviews: Use silence
• The pressure it exerts is sometimes more
compelling than anything that can be spoken.
HOGGE LAW
Discrimination and Harassment Investigations
Written Statements
• Complaining employee - require
• Accused employee - require
• Witnesses - require if testimony crucial
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?
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?
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
HOGGE LAW
Discrimination Investigations
Americans With Disabilities Act
• Existence of disability
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Employee representations
Employee activities
Medical certification
ADAAA amendments to ADA
HOGGE LAW
Discrimination Investigations
Americans With Disabilities Act
• Essential v. marginal job functions
• Job descriptions
• Actual practices
• Performance evaluations
HOGGE LAW
Discrimination Investigations
Americans With Disabilities Act
• Accommodation Request
• Written request
• Oral request
• Interactive process
HOGGE LAW
Discrimination Investigations
Americans With Disabilities Act
• Reasonableness of accommodation
• Accommodation requested
• Accommodation offered
HOGGE LAW
Discrimination Investigations
Americans With Disabilities Act
• Undue hardship
• Difficulty
• Expense
HOGGE LAW
Discrimination Investigations
Family and Medical Leave Act
• Serious health condition
• Medical certification
• Notice of need for leave
• Return to work
HOGGE LAW
Wage Hour Investigations
Fair Labor Standards Act, Davis Bacon Act, etc.
• Minimum wage
• Overtime compensation
• Child labor
• Prevailing wage rate
HOGGE LAW
Wage Hour Investigations
Exemptions from minimum wage / overtime
• Executive employees
• Administrative employees
• Professional employees
• Computer employees
• Outside salesmen
• Other job-specific exemptions
HOGGE LAW
Wage Hour Investigations
Exemptions from minimum wage / overtime
• Salary basis test
• Exemption lost due to improper deductions from
salary
• Window of correction
HOGGE LAW
Wage Hour Investigations
Exemptions from minimum wage / overtime
• Primary duty test
• Exemption lost if exempt work not primary duty
HOGGE LAW
Wage Hour Investigations
Hours worked - rest and meal breaks
• Rest breaks - 20 minutes
• Meal breaks - 30 minutes
• Working while on break
• Charging employees with breaks not taken
HOGGE LAW
Wage Hour Investigations
Hours worked - travel time
• Home to office
• Home to job site
• Job site to job site
• job site to office
• job site to home
• Out of town travel
HOGGE LAW
Wage Hour Investigations
Hours worked - waiting and stand-by time
• Waiting to be engaged
• Engaged to be waiting
• Sleep time
HOGGE LAW
Wage Hour Investigations
Hours worked - training time
• During work hours
• Outside work hours
• Job-related v. non-job related
HOGGE LAW
Wage Hour Investigations
Hours worked - Portal to Portal Act
• Donning and doffing
HOGGE LAW
Wage Hour Investigations
Overtime compensation
• Workweek basis
• Hourly employees
• Non-exempt salaried employees
• Fluctuating workweek
HOGGE LAW
Workplace Injury Investigations
Circumstances of premises
• Physical condition of premises
• Weather
• Lighting
• Condition of tools and equipment
• Safety equipment used
HOGGE LAW
Workplace Injury Investigations
Employee circumstances
• Employee training
• Employee experience
• Employee compliance with safety rules
• Employee job performance
• Employee disciplinary record
• Employee relationship with employer
HOGGE LAW
Workplace Injury Investigations
Reports and Witnesses
• Employee’s report of injury and events
• Co-worker report of injury and events
• Supervisor report of injury and events
• Police or first responder report of injury and
events
HOGGE LAW
Workplace Injury Investigations
Medical Circumstances
• Employee’s first treatment for injury
• Employee’s subsequent treatment for injury
• Emergency room records
• Health care provider records and reports
• Employee prior medical history
HOGGE LAW
Workplace Violence Investigations
Verbal threats by employee
• Express v. implied threats
• To management / coworkers / third parties
• Oral threats
• Written threats
• Threats in e-mail
• Threats published on social media
HOGGE LAW
Workplace Violence Investigations
Employee conduct
• Observed by management / coworkers / third
parties
• Unauthorized or inappropriate possession or
use of firearms, knives, or other weapons
• Reckless or dangerous conduct toward self or
others
• Drastic or abrupt changes in mood or
demeanor or self-isolation
HOGGE LAW
Workplace Violence Investigations
Employee circumstances
• Use illegal drugs
• Abuse of prescription drugs or alcohol
• Financial distress
• Family or personal stressors
• Loss of employment
• Psychosis or other psychiatric disorder
HOGGE LAW
Workplace Violence Investigations
Employee response
• Inappropriate response to employer concerns
• Refusal to utilize employee assistance
program
• Refusal to seek appropriate professional care
HOGGE LAW
Workplace Violence Investigations
Advice of Professionals
• Employee health care providers
• Mental health consultants
• Police
HOGGE LAW
Preventing Retaliation
Adopt and publish anti-retaliation policy
• Explain legal prohibitions against retaliation
• Strictly prohibit retaliation
• Violation of policy may result in discipline up
to and including termination
HOGGE LAW
Preventing Retaliation
Train supervisors and managers in compliance
with anti-retaliation policy
• Initial training upon adoption of policy
• Training as new supervisor and managers are
hired or promoted
• Periodic training of all supervisors and
managers
HOGGE LAW
Preventing Retaliation
Integrate anti-retaliation policy into all
workplace investigations
• Remind all employees of policy before
investigatory interview
• Have each interviewed employee sign written
acknowledgment of the anti-retaliation policy
at the conclusion of the interview
• Emphasize anti-retaliation policy to any
employee who is under investigation
HOGGE LAW
We hope you find this presentation useful. Please feel free to
use or distribute it for informational purposes. For additional
free resources for Virginia employers, please visit us at
www.VirginiaLaborLaw.com. For legal advice or assistance with
workplace investigations, or if we can assist you in any other way
with labor and employment law issues, please contact us at the
following address:
Raymond L. Hogge, Jr., Esq.
HOGGE LAW
Attorneys and Counselors at Law
500 E. Plume Street, Suite 800
Norfolk, Virginia 22510
(757) 961-5400

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