IMPORTANT CONSIDERATIONS IN CONDUCTING WORKPLACE INVESTIGATIONS
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 • • • • • • 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 • • • • • • • 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 • • • • • • 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 • • • • 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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