Lessons Learned in Workforce Management from Experienced Employee and Employer Representatives April...

Lessons Learned in Workforce Management from Experienced

Employee and Employer Representatives

April 16, 2014

April 24, 2013 Ryan Law Firm, LLC

http://www.xcelenergy.com/

w w w . j a c k s o n k e l l y . c o m

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WORKPLACE INVESTIGATIONS: An Overview

• The Benefits of an Effective Investigation

• Ten Steps to a Successful Investigation

• Common Investigation Mistakes – and How to Avoid Them

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CAVEAT: Investigations Require Judgment Calls

Although most investigations will require you to consider each of the ten steps, every situation is different. There will be conflicting stories and no clear answers about what happened and what you should do. You’ll have to decide which problems merit a closer look, whom to interview and what documents to review. When your investigation is complete, you’ll have to decide what you think really happened.

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BENEFITS OF AN EFFECTIVE INVESTIGATION

Among its many benefits, a proper investigation will help you:

•Figure out what happened: acting before you know the facts could lead you to discipline the wrong employee.

•Deal with employee problems early: an investigation will help you figure out who is behind a workplace problem so that you can take action before things get worse.

•Enforce company policies: showing employees that there are consequences for misconduct will help you deter future trouble and keep employees on the right track.

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• Encourage reporting: encouraging employees to come forward with concerns means that you’ll hear about workplace trouble before it grows into a more serious problem.

• Avoid or counter bad publicity: consistently addressing complaints shows that the company cares about its employees and bolsters the company’s reputation.

• Protect your company from lawsuits: showing that your company took action right away can protect the company from liability in many cases.

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TEN STEPS TO A SUCCESSFUL INVESTIGATION

1. Decide whether to investigate2. Take action immediately, if necessary3. Choose an investigator4. Plan the investigation5. Interview6. Gather documents and other evidence7. Evaluate the evidence8. Take action9. Document the investigation10. Follow up

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COMMON MISTAKES AND HOW TO AVOID THEM

1. Failing to Investigate2. Delaying3. Being Inconsistent4. Retaliating5. Failing to Be Thorough6. Compromising Confidentiality7. Losing Objectivity8. Using Strong-Arm Interview Tactics9. Invading Employee Privacy10. Using Polygraphs Improperly

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1. FAILING TO INVESTIGATE

Consequences: Exposure can come not only from employees, but also from third parties or customers through negligent retention and negligent supervision claims.

Bottom line: Never ignore complaints of wrongdoing. Even if a situation seems straightforward, do some initial research before deciding that an investigation is not warranted. Always make sure you know all the facts before taking disciplinary action against an employee.

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2. DELAY

The longer you postpone the investigation, the more serious your liability could be, particularly in a sexual harassment or workplace violence situation.

Once you learn of a serious problem, get moving right away. If you absolutely have to wait (because the victim is on vacation, for example) document the reason for the delay.

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3. INCONSISTENCY

• Avoid discrimination claims by treating similar problems similarly. If you decide to investigate one claim but not another, make sure you have a valid, business-related reason for doing so. If you punish one employee more harshly than another, be prepared to justify the difference.

• Inconsistency is sometimes justified, but can be a sign of unconscious bias at work.

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4. RETALIATION

• Any action that could deter a reasonable worker from coming forward with a complaint might constitute retaliation. Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006).

• An employee need not show that he or she was fired or demoted to bring a retaliation claim. Lesser forms might qualify as retaliation, if they could discourage employees from bringing complaints.

• Warn everyone involved in an investigation that retaliation won’t be tolerated.

• If you must separate the workers, either move the worker accused of misconduct, or make sure the worker who complained is in favor of the change you propose.

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5. FAILING TO BE THOROUGH

Performing an incomplete or sloppy investigation – by failing to interview key witnesses, neglecting to review important documents, or ignoring issues that come up during the investigation – can have many of the same negative consequences as failing to investigate at all.

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6. COMPROMISING CONFIDENTIALITY

• Telling a witness what another witness said, revealing your personal opinion to one of the employees involved, or publicizing the complaint in the workplace can lead others to doubt your objectivity.

• Employees may change their statements, either subconsciously or intentionally, based on what you say.

• An employee who believes you maligned his or her reputation by spreading false information can sue for defamation.

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7. LOSING OBJECTIVITY

The best antidote for this problem is to remember your role. When you investigate, you are acting on behalf of the company. If you feel you are unable to put your personal feelings aside, get some help. Ask someone else within the workplace (or hire an outside investigator) to conduct the investigation or get some advice from a lawyer.

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8. STRONG-ARM INTERVIEW TACTICS

• Using physical means to restrain an employee, or taking actions that lead the employee to believe that he or she is not free to go, can lead to a claim of false imprisonment.

• The company is free to take disciplinary action against an employee who refuses to answer legitimate questions or participate in a workplace investigation. However, you cannot use physical means or threats to prevent the employee from leaving.

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9. INVADING EMPLOYEE PRIVACY

Searches: Company policy should reserve the right to search employee workspaces so that the contents of employees’ desks or lockers are not considered private.

Electronic Monitoring: As long as company has a written policy letting workers know that it might monitor their e-mail or use of the Internet, the company has the right to read employee e-mail sent on company equipment or company can monitor websites employee visited using company’s computer network.

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DECIDING WHETHER TO INVESTIGATE

Factors to consider in determining whether to investigate:

• Whether there is a dispute over what happened

• How serious the alleged misconduct is, and

• How similar complaints have been handled in the past.

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ARE THE FACTS IN DISPUTE?

If everyone agrees on the basic facts, you can move on to figuring out how to deal with the problem.

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HOW SERIOUS IS THE PROBLEM?

Incidents that implicate a violation of company policies, ethical concerns, misuse of company property, inappropriate dealings and other examples may trigger an investigation, even if seemingly minor. This is because they could be examples of more pervasive, systemic problems.

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HOW HAVE SIMILAR PROBLEMS BEEN HANDLED?

CONSISTENCY

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TAKE IMMEDIATE ACTION, IF NECESSARY

• Some situations will require you to take precautionary steps right away, even before the investigation begins.

• Examples:• Employee complains supervisor has fondled her

repeatedly;• Employee threatens to bring a gun to work; or• Employee appears to be stealing trade secrets to

give to a competitor.

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AVOID UNPAID SUSPENSIONS

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CHOOSE THE INVESTIGATOR

• Decide first whether someone from the company can investigate. Some situations may warrant an outside investigator.

• Two person approach: one person asks questions, the other takes notes. Benefits: each investigator can serve as a witness for the other and you have two sets of eyes and ears.

• But, always look at the situation. Some employees may feel intimidated by having two people present.

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Consider bringing in outside help if:

• More than one employee complains about the same serious problems

• The accused is a high-ranking person in the company• The complaining employee has publicized the complaint

in the workplace or in the media• The complaining party has hired a lawyer, filed a lawsuit

or filed charges with the EEOC or other state or federal administrative agency

• The accusations are extreme (allegations of rape, assault, etc.)

• For various reasons, no one is available to investigate the complaint fairly and objectively

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Part 3: GATHERING INFORMATION

• Conducting Interviews

• Gathering Other Evidence

• Follow-Up Interviews

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INTERVIEWING THE COMPLAINING EMPLOYEE

In most instances, you will start with the complaining employee.

It may also be prudent to interview a supervisor first in order to ascertain whether the complaint can be maintained as confidential under the Banner Health case (discussed later).

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INTERVIEWING ACCUSED EMPLOYEESCover at outset:• Let the employee know that a complaint has been made and that you

are investigating the situation.• Assure the accused employee that you have not reached any

conclusions and that you will listen carefully to everyone involved before taking action.

• Explain that you expect the employee to give accurate information.• Explain that you will maintain confidentiality as much as possible,

and if you have determined that the situation gives rise to the need for a witnesses to be provided protection, that evidence is in danger of being destroyed, that testimony may be in danger of being fabricated, or there is a need to prevent a cover up only then should you instruct the employee not to talk to coworkers about the investigation or the complaint.

• Tell the employee that retaliation is forbidden.

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DOCUMENTS CHECKLIST Company policies Email messages Postings to company bulletin board

(electronic or corkboard) Correspondence Performance evaluations Work samples

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DOCUMENTS CHECKLIST Written warnings and other disciplinary

records Customer complaints or comments Commendations Documents signed by the employees

involved Attendance records

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DOCUMENTS CHECKLIST Payroll records Time cards or other records showing

hours worked Work schedules Inventory records Expense reports Computer records (or Internet sites

visited, productivity, etc.)

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DOCUMENTS CHECKLIST Productivity reports Notes taken by the employee involved

(i.e., if an employee made a record of harassing comments or kept a journal of workplace incidents)

Files from any previous investigations of the same employees or same types of incidents.

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FOLLOW-UP INTERVIEWS

Interview accused employee if you have new details in order to get his or her response: Courts are more likely to find an investigation was fair and thorough – and its outcome reliable – if the accused employee is given the opportunity to respond to all the evidence before the company makes a final decision.

As to complaining employee: if accused employee or witnesses have denied the complaining employee’s allegations or offered reasons why the complaining employee might not be telling the truth, you should let the complaining employee respond.

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PART 4: MAKE AND DOCUMENT YOUR DECISION

• Evaluate the Evidence

• Decide Whether Misconduct Occurred

• Take Action

• Document Your Decision

• Follow Up

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PREPARE AN INVESTIGATION REPORT• Remember your audience – the document you write today could end up in

the hands of a lawyer suing your company. Any important omissions, inappropriate comments or random musings could come back to haunt you.

• You do not need the extraneous details – just all of the major decisions you made and why.

• If you did not believe a witness’ statement, make a note regarding the reasons for your skepticism.

• If you found no misconduct occurred, write down all of the reasons for your decision.

• If you believe employee engaged in misconduct, clearly state your finding. However, avoid saying the employee broke the law or committed a legal violation (such as saying that he or she sexually harassed someone). If you state that the employee committed an illegal act, you may have conceded the company’s liability.

• Best practice if misconduct found: record that employee committed misconduct, violated company policies, or acted inappropriately.

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SPECIAL CONSIDERATIONS IN INVESTIGATING THE

“PROTECTED ACTIVITY” COMPLAINT:

THE BANNER HEALTH CASE

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CONFIDENTIALITY OF WORKPLACE INVESTIGATIONS

• NLRB using Section 7 of the NLRA to evaluate work rules.

• A work rule cannot reasonably tend to chill employees in their exercise of Section 7 rights under the NLRA.

• Section 7 protects employees’ rights “to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

• Section 7 broadly protects employees’ right to unionize, to strike, and to discuss terms and conditions of employment.

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NLRB: Prohibiting Discussion of Work Investigations Unlawful

• Banner Health System v. Navarro, 358 NLRB No. 93 (July 30, 2012)

• Held that prohibiting employees from discussing ongoing investigations violates employees’ rights under the NLRA to engage in concerted activity.

• Applies to union and non-union workplaces.

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Banner Health System v. Navarro

• Employee filed ULP with NLRB under Section 8(a)(1) of the NLRA, which provides that it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7.

• Section 7 gives employees the right to engage in “other concerted activities for the purpose of collective bargaining, or other mutual aid or protection.”

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ULTIMATE IMPACT OF NLRB RULING

• In order to minimize the impact on NLRA rights, the employer must “first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.”

• Board found that Banner’s “blanket approach clearly failed to meet those requirements.”

• As a result of Board’s ruling, a rule prohibiting employees from discussing ongoing investigation of misconduct violates the NLRA.

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TAKE-AWAYAn employer can prohibit employee discussion of on-going investigations in situations in which it has a legitimate business justification that outweighs an employee’s right to communicate with coworkers. Routine or generalized prohibitions will not outweigh employee rights. Rather, the employer must be able to show that, as to a specific investigation, the employer made a determination as to whether any witnesses needed protection, evidence was in danger of being destroyed, or testimony was in danger of being fabricated.

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OSHA Inspections

• Know your rights and the company’s limitations.

• Be an active participant and understand the process.

• Do not be intimidated.

• Be firm, but polite.

Model Behaviors for the Inspection Process


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OSHA Inspections

• Know when to object to certain conduct - don’t wait until it is too late.

• Know when you need help, and ask for it immediately.

• Don’t be overly antagonistic or a pushover.• Have a system in place for dealing with the

processes in advance.

Model Behaviors for the Inspection Process


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Recommendations

Playing ostrich and hoping to escape OSHA, civil liability or insurance problems is a losing strategy. Employers can manage these risks by taking affirmative

steps toward compliance. The

result can be facilities that are safe,

more productive and more

profitable.


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Litigation filed by the EEOC versus CVS Pharmacy, Inc.,

scrutinizing common settlement and severance agreement terms


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EEOC Targets Release Provision

EEOC v. CVS Pharmacy, Inc., Civil Docket No. 1:14-cv-00863, USDC, District of Illinois


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• The EEOC’s Complaint calls out the following provisions of the separation agreement:– Cooperation clause providing that the employee

will contact the company if the employee receives a subpoena or other inquiry relating to a legal matter;

– A nondisparagement clause;– A clause barring the disclosure of confidential

company information;– A general release of claims; and– A covenent not to sue.


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• Until this claim is tested through the Federal court system, the best practice recommendation is to include a conspicuous disclaimer noting that the employee is still able to bring claims to the EEOC, even after signing a separation agreement and release.


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QUESTIONS?

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