1. Lawsuit Proof Investigations Seminar Leader: Jody Katz Pritikin, Esq.Katz Consulting & Associates

3. The “Time” Attack

4. The “Fair & Thorough” Attack

5. The “Taint Free” Attack

6. The “Retaliation” Attack

7. The “Burden to Remedy” AttackYou must proactively prepare to defend your investigation and the decisions you make along the way against ATTACK.

8. BINGO

9. BINGO Question 1: You are the HR Generalist for a distribution company. One of the managers has just sent you an email stating that “an employee” is complaining that the night manager is calling her at home, texting her romantic messages and sending her pictures of himself. She doesn’t want to make a complaint, but she does want her company issued cell phone number changed. What is your next move? Conduct An Investigation ASAP. This is notice of a violation of your company’s electronic communications and harassment policies. You should begin immediately by getting all cell phone text message transcripts from the phone company and filtering out the “anonymous complainant.” Wait & See. Don’t overreact. You still don’t have enough facts. Reply to the email and ask the manager to look into it himself and come back to you with more information. Document Your Response. Change the employee’s cell phone number, as requested. Since she isn’t “complaining,” there is no need to initiate an investigation at this time. Document this. Act Reasonably. Talk to the manager who sent you an email to determine which employee is receiving the calls, text messages and pictures. Call that employee into your office to determine what, if any, company policies were violated.

10. BINGO Question 1: You are the HR Generalist for a distribution company. One of the managers has just sent you an email stating that “an employee” is complaining that the night manager is calling her at home, texting her romantic messages and sending her pictures of himself. She doesn’t want to make a complaint, but she does want her company issued cell phone number changed. What is your next move? Conduct An Investigation ASAP. This is notice of a violation of your company’s electronic communications and harassment policies. You should begin immediately by getting all cell phone text message transcripts from the phone company and filtering out the “anonymous complainant.” Wait & See. Don’t overreact. You still don’t have enough facts. Reply to the email and ask the manager to look into it himself and come back to you with more information. Document Your Response. Change the employee’s cell phone number, as requested. Since she isn’t “complaining,” there is no need to initiate an investigation at this time. Document this. Act Reasonably. Talk to the manager who sent you an email to determine which employee is receiving the calls, text messages and pictures. Call that employee into your office to determine what, if any, company policies were violated. If you have the correct answer on your BINGO card, place a token over your BINGO square!

14. has repeatedly investigated the parties

15. shows a pattern for siding with the employer

16. has disciplined the parties for unrelated claims

17. is subject to job performance evaluations from the parties

18. is privy to private information unrelated to the claim

20. the person investigated is a high ranking executive or a member of HR

21. the complainant asks for a neutral investigator,

23. BINGO Question 2: Amy has a history of making claims of harassment in the workplace. Except for one incident in which an employee was disciplined for making an off-color joke, the investigations have determined that Amy’s claims were baseless. Amy has recently filed another complaint alleging that her supervisor, Jim, is treating her unfairly because she is pregnant. Amy has requested you hire an “outside” investigator because she thinks you don’t take her seriously. Frankly, it offends you to spend extra money on an outside investigator, when you know that Amy’s claims are frivolous. What should you do? Conduct An Investigation ASAP. You must take Amy’s new claim as seriously as you took the first claims and begin an investigation immediately. You can demonstrate to Amy that you take her seriously this time by recommending Jim take “Sensitivity Training” as a remedial measure. “Neutrality” Attack. Employees that make a lot of complaints usually become plaintiffs in lawsuits against the company. It is imperative that you conduct a Lawsuit Proof Investigation into each and every complaint that Amy makes. Since Amy has already questioned your “neutrality,” you should seriously consider bringing in an outside investigator. It may cost more now, but if it prevents a large liability award, it will be a cost saving decision in the long run. Delay Action. Amy will be taking maternity leave soon. You doubt she will want to come back once she has the baby. This is a problem that will take care of itself if you just stall one or two months. It’s probably hormonal anyway. Severance & Release. This is an ideal time to get rid of a problem employee. Offer Amy a nice Severance Package to leave the company and release your company from any claims she could make in the future. If you have the correct answer on your BINGO card, place a token over your BINGO square!

25. delays create a hardship on the parties. Justify and explain delays.

26. explain significant delays between “Legal Notice” and the onset of an investigation.

27. hardships should be minimized.

28. suspension of the accused should be with pay.

29. consider having more than one or two trained to conduct an investigation.HERE’S A TIP: Employers should have policies that explain to employees how to make a complaint. Managers should be trained about what to do/say when an employee complains to them. HR should have intake procedures for complaints and forms available for making complaints.

31. don’t prejudge beforehand. It is usually not “what you expect.”

32. justify or explain why, if one party was not interviewed

33. the witness list should be “organic” and derived from investigatory interviews

34. interview witnesses on both sides and ask parties about their witnesses

35. justify or explain why any witnesses were not interviewed/ interviewed by phone.

36. if “everyone” was interviewed, justify or explain why.

37. support credibility determinations

38. questions should be open ended, no leading. Interviewer must ask “difficult” Qs.

39. evidence that is not available or that was destroyed needs to be explained.

40. if “scope” of the investigation is limited, explain and justify omissions.HERE’S A TIP: The investigation should be well documented. If it is not, it looks like the Company may be hiding something. Remember, the investigation is most likely a “defense” in litigation. In this case, privilege is waived as to all statements and evidence presented to the investigator. NOTHING IS CONFIDENTIAL in this case. Including the investigation conversations, evidence and conclusions – even if the investigator is an attorney.

41. BINGO Question 3: You recently conducted an investigation into allegations from two employees that your COO was discriminating against them because he was “favoring” one employee who he allegedly slept with by giving him access to client meetings, taking him on company trips and recommending him for bonuses. When you interviewed him, the COO did not deny or refute the allegations. He stated that his personal life was “none of your business.” After meeting with five additional employees, you determined that the COO committed sexual favoritism and violated company policy. You concluded your investigation and recommended termination. A few months later, the now former COO sued your company for wrongful termination. He presented irrefutable evidence that showed that the allegations were false and made up. Had you had this information at the time, you obviously would not have recommended termination. Will the former COO prevail based on the investigation you conducted? “Fair & Thorough” Attack. The COO will not prevail. The investigation was fair and thorough. You interviewed the parties and witnesses. You reviewed evidence available and you made a conclusion and recommendation that were reasonable in light of the information presented to you. Your fair and thorough investigation will protect the company from a finding of wrongful termination. You did not have to be “right” with 20/20 hindsight. “Privacy” Attack. The COO will prevail. It is unreasonable to ask a high ranking executive to divulge the personal details of his romantic life to an investigator. The investigation should have determined that there was not enough information to support the allegations in these circumstances. “Neutrality” Attack. The COO will prevail. An HR person should not be asked to investigate and make disciplinary recommendations against the COO of her company. Obviously, the COO can influence whether the HR person receives a bonus or raise in the future. The HR person will be incentivized to recommend termination in order to avoid future recriminations from the COO. Wrongful Termination. The COO will prevail. He deserves his job back and back pay at the very least. He should also sue for defamation since his reputation was damaged as well. The investigation was obviously not reasonable or thorough since it “missed” the exculpatory evidence.

42. BINGO Question 3: You recently conducted an investigation into allegations from two employees that your COO was discriminating against them because he was “favoring” one employee who he allegedly slept with by giving him access to client meetings, taking him on company trips and recommending him for bonuses. When you interviewed him, the COO did not deny or refute the allegations. He stated that his personal life was “none of your business.” After meeting with five additional employees, you determined that the COO committed sexual favoritism and violated company policy. You concluded your investigation and recommended termination. A few months later, the now former COO sued your company for wrongful termination. He presented irrefutable evidence that showed that the allegations were false and made up. Had you had this information at the time, you obviously would not have recommended termination. Will the former COO prevail based on the investigation you conducted? “Fair & Thorough” Attack. The COO will not prevail. The investigation was fair and thorough. You interviewed the parties and witnesses. You reviewed evidence available and you made a conclusion and recommendation that were reasonable in light of the information presented to you. Your fair and thorough investigation will protect the company from a finding of wrongful termination. You did not have to be “right” with 20/20 hindsight. “Privacy” Attack. The COO will prevail. It is unreasonable to ask a high ranking executive to divulge the personal details of his romantic life to an investigator. The investigation should have determined that there was not enough information to support the allegations in these circumstances. “Neutrality” Attack. The COO will prevail. An HR person should not be asked to investigate and make disciplinary recommendations against the COO of her company. Obviously, the COO can influence whether the HR person receives a bonus or raise in the future. The HR person will be incentivized to recommend termination in order to avoid future recriminations from the COO. Wrongful Termination. The COO will prevail. He deserves his job back and back pay at the very least. He should also sue for defamation since his reputation was damaged as well. The investigation was obviously not reasonable or thorough since it “missed” the exculpatory evidence. If you have the correct answer on your BINGO card, place a token over your BINGO square!

44. the investigation was conducted in an open, non-private setting

45. if the investigator discussed the investigation with anyone other than counsel, or specifically delineated individuals

46. if the parties discussed the events with any witnesses before they were interviewed

47. if the rumor mill or gossip has not been contained

48. if several parties colluded before bringing a claim

49. evidence was purposely destroyed or overwrittenHERE’S A TIP: At the onset of an investigation, it is important to ensure that evidence is not inadvertently destroyed or overwritten. Also, in some cases a forensic IT investigator may need to “preserve” hard drives or data before it can be examined to avoid a claim of “spoliation” or sanctions in litigation.

50. BINGO Question 4: One of your employees was seen by a building security officer carting off boxes of files over the weekend. Your CEO suspects that this employee is planning on leaving and joining a competitor. You have been asked to conduct an investigation into the alleged trade secret theft. When you conduct this investigation, you should: “Taint Free” Attack. Interview all other witnesses first and be careful not to “tip off” the alleged wrongdoer. Then, conduct the investigation with the perpetrator in the glass walled conference room so that there will be witnesses if the alleged wrongdoer begins to have a tantrum and refuses to be interviewed without their attorney present. Do Not Prejudge. Ask open ended questions that give the alleged wrongdoer an opportunity to explain what she was doing on company premises over the weekend. Also, ask her point blank whether she has removed company property or information in an effort to aid a competitor against the company. Give her an opportunity to respond to all the allegations against her and interview witnesses or review documents that support her version of events. “Privacy” Attack. Conduct the investigation in a private conference room, but make sure you secretly tape record the conversation and ask a co-worker from HR to hide in the closet and take notes. That way, when the alleged wrongdoer denies making any incriminating statements to you, you will have proof that she is lying. “Neutrality” Attack. This is the most serious claim that an employee can have against them. Obviously, an outside investigator should be brought in and law enforcement should be informed. This is too much for the HR department to handle alone.

51. BINGO Question 4: One of your employees was seen by a building security officer carting off boxes of files over the weekend. Your CEO suspects that this employee is planning on leaving and joining a competitor. You have been asked to conduct an investigation into the alleged trade secret theft. When you conduct this investigation, you should: “Taint Free” Attack. Interview all other witnesses first and be careful not to “tip off” the alleged wrongdoer. Then, conduct the investigation with the perpetrator in the glass walled conference room so that there will be witnesses if the alleged wrongdoer begins to have a tantrum and refuses to be interviewed without their attorney present. Do Not Prejudge. Ask open ended questions that give the alleged wrongdoer an opportunity to explain what she was doing on company premises over the weekend. Also, ask her point blank whether she has removed company property or information in an effort to aid a competitor against the company. Give her an opportunity to respond to all the allegations against her and interview witnesses or review documents that support her version of events. “Privacy” Attack. Conduct the investigation in a private conference room, but make sure you secretly tape record the conversation and ask a co-worker from HR to hide in the closet and take notes. That way, when the alleged wrongdoer denies making any incriminating statements to you, you will have proof that she is lying. “Neutrality” Attack. This is the most serious claim that an employee can have against them. Obviously, an outside investigator should be brought in and law enforcement should be informed. This is too much for the HR department to handle alone. If you have the correct answer on your BINGO card, place a token over your BINGO square!

53. reminding the parties and witnesses during the interview about the company’s policy that prohibits retaliation and ensuring an understanding of the type of conduct that may be construed as retaliation

54. asking parties and witnesses if they fear retaliation or feel they are being retaliated against

55. determining if there was a history of abuse, stalking, threats of violence, damage to property and, if so, taking appropriate security measures

56. having parties and witnesses contact the investigator if they experience retaliationHERE’S A TIP: Even when you are trying to “protect” the complainant, the complainant should never be the one sent home, transferred or suspended pending an investigation because he/she will claim that this was retaliatory punishment for their making the claim. If the complainant insists on staying home, get it in writing that they are the one who wanted this and that they do not consider it retaliation.

57. BINGO Question 5: Tom is a very tough manager. Some of the employees he supervises complained that he “bullied” them and threw crumbled up paper at them in a rage. Following your company policy, you investigate the matter and place Tom on a strict performance improvement plan. He becomes upset and files a discrimination charge with the Equal Employment Opportunity Commission (EEOC). You continue to address his performance problems and ultimately, Tom is terminated. Several weeks later, a company telephones you for a reference on Tom. You inform this company that Tom was a bully and a trouble maker who also filed a discrimination charge. What action, if any, can Tom take? Do Nothing. Tom cannot do anything now. He is no longer an employee at your company. He must adhere to the finding of the EEOC based on his initial discrimination allegations and he is confined to the remedial measures, if any, that that the EEOC recommends. Defamation. Tom can sue your company and you, personally, for defamation. Your comments damaged his reputation and prevented him from securing future employment. He can seek unlimited punitive damages against you. Retaliation. Tom participated in protected activity when he filed a claim against your company with the EEOC. Tom can add a “retaliation” claim stating that the negative reference was because he made the claim. Assuming there is proper documentation, the company may succeed in defeating the discrimination claim, but the post termination statement that Tom is a “troublemaker” may be more problematic in defeating the retaliation claim. Discrimination. Tom can sue the prospective employer for discrimination too. The prospective employer should have conducted its own investigation into the allegations that Tom was a bully and a troublemaker.

58. BINGO Question 5: Tom is a very tough manager. Some of the employees he supervises complained that he “bullied” them and threw crumbled up paper at them in a rage. Following your company policy, you investigate the matter and place Tom on a strict performance improvement plan. He becomes upset and files a discrimination charge with the Equal Employment Opportunity Commission (EEOC). You continue to address his performance problems and ultimately, Tom is terminated. Several weeks later, a company telephones you for a reference on Tom. You inform this company that Tom was a bully and a trouble maker who also filed a discrimination charge. What action, if any, can Tom take? Do Nothing. Tom cannot do anything now. He is no longer an employee at your company. He must adhere to the finding of the EEOC based on his initial discrimination allegations and he is confined to the remedial measures, if any, that that the EEOC recommends. Defamation. Tom can sue your company and you, personally, for defamation. Your comments damaged his reputation and prevented him from securing future employment. He can seek unlimited punitive damages against you. Retaliation. Tom participated in protected activity when he filed a claim against your company with the EEOC. Tom can add a “retaliation” claim stating that the negative reference was because he made the claim. Assuming there is proper documentation, the company may succeed in defeating the discrimination claim, but the post termination statement that Tom is a “troublemaker” may be more problematic in defeating the retaliation claim. Discrimination. Tom can sue the prospective employer for discrimination too. The prospective employer should have conducted its own investigation into the allegations that Tom was a bully and a troublemaker. If you have the correct answer on your BINGO card, place a token over your BINGO square!

60. remedies should not be pretext to cover-up other wrongdoing.

61. an employers ignoring remedial actions recommended by an investigator can demonstrate a failure to meet the “burden to remedy.”

62. ongoing misconduct demonstrates a failure to meet the “burden.”

63. damages will accrue from the time of legal notice and are not mitigated unless the harassment stops.HERE’S A TIP: Even when the investigation conclusion does NOT find that the allegations are valid, it is still acceptable to recommend “refresher training” for the accused. This may not be deemed “remedial” or “disciplinary,” but may ensure that inappropriate or non-managerial conduct does not happen again.

64. BINGO Question 6: You are the HR/Payroll of a posh boutique hotel. Joanna is a concierge there. She mentions to you, confidentially, that a co-employee is watching R rated movies on the bar plasma during the night when no hotel guests are in the bar. You offer to investigate the matter. She firmly rejects the offer and states that she merely wanted you to be aware of the situation in case it became worse. The following week, Joanna gives her two week notice and tells you that it had nothing to do with that ugly mess, but she was offered a better hotel job with a day shift. What is your best next move? Do Nothing. Lucky you. Joanna is gone and she never mentioned who was watching the R rated films on the bar plasma. There is no one to investigate and no one to make a complaint. Just in case, issue a memo to the entire bar staff about company policy. “Burden to Remedy” Attack. You know you need to make sure this never happens again. Since you have no idea who watched the R rated films on the bar plasma, you should terminate all of the bar employees who work the night shift. It’s only 2 or 3 employees that won’t be hard to replace. Investigate and Remedy. You are on notice of conduct that violates your company harassment policy. Even though Joanna is gone, she can still sue your company for harassment and damages will have accrued from the time she told you “confidentially” about it and rejected your offer to investigate. Yikes. You can interview the bar employees who work the night shift and remind them of company policy. If you determine who was the individual who watched the R film, you can discipline him or her for that, ensuring that they are reminded that any other violation may result in termination. Inform HR. This is a good time to take your vacation. Send a memo to the VP of HR and tell him or her that you recommend that they look into this matter ASAP. Bon Voyage.

65. BINGO Question 6: You are the HR/Payroll of a posh boutique hotel. Joanna is a concierge there. She mentions to you, confidentially, that a co-employee is watching R rated movies on the bar plasma during the night when no hotel guests are in the bar. You offer to investigate the matter. She firmly rejects the offer and states that she merely wanted you to be aware of the situation in case it became worse. The following week, Joanna gives her two week notice and tells you that it had nothing to do with that ugly mess, but she was offered a better hotel job with a day shift. What is your best next move? Do Nothing. Lucky you. Joanna is gone and she never mentioned who was watching the R rated films on the bar plasma. There is no one to investigate and no one to make a complaint. Just in case, issue a memo to the entire bar staff about company policy. “Burden to Remedy” Attack. You know you need to make sure this never happens again. Since you have no idea who watched the R rated films on the bar plasma, you should terminate all of the bar employees who work the night shift. It’s only 2 or 3 employees that won’t be hard to replace. Investigate and Remedy. You are on notice of conduct that violates your company harassment policy. Even though Joanna is gone, she can still sue your company for harassment and damages will have accrued from the time she told you “confidentially” about it and rejected your offer to investigate. Yikes. You can interview the bar employees who work the night shift and remind them of company policy. If you determine who was the individual who watched the R film, you can discipline him or her for that, ensuring that they are reminded that any other violation may result in termination. Inform HR. This is a good time to take your vacation. Send a memo to the VP of HR and tell him or her that you recommend that they look into this matter ASAP. Bon Voyage. If you have the correct answer on your BINGO card, place a token over your BINGO square!

66. BINGO

68. The “Time” Attack

69. The “Fair & Thorough” Attack

70. The “Taint Free” Attack

71. The “Retaliation” Attack

72. The “Burden to Remedy” AttackPlease fill out your Evaluation Forms. Thank you for your participation.