Before You Tell Them Not to Discuss The Investigation

August 14, 2012

…be aware of two very recent and very important pieces of information.  In one case, Banner Health Care 358 NLRB No. 93, the National Labor Relations Board found that blank “gag rules” requiring all participants in an investigation to refrain from discussing the investigation while it was ongoing, with the rationale of protecting the integrity of the investigation was a violation of Rule 7, which allows employees to discuss the “terms and conditions of their employment.”    The NLRB indicated that an employer has to have a legitimate business interest that outweighs that rule, including the need to protect a specific witness, danger of evidence being destroyed, testimony was being fabricated or there was a need to prevent a cover up.  A blanket practice to require all employees to refrain from discussing the matter was deemed too broad to meet these criterion.

In a second matter, the the EEOC’s Buffalo, NY, office has notified an employer of an investigation of its policy of warning employees not to discuss harassment investigations with co-workers:

You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition. It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination. So, discussing one’s complaints of sexual harassment with others is protected opposition. An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial”

While this is only one office of the EEOC, and we will see challenges to the NLRB decision, employers should nevertheless promptly make changes in their checklists or other means of providing notices to witnesses.

1)  Ask, don’t order witnesses and parties to refrain from discussing the matter, and explain that your purpose is to be certain the investigation is far and unspoiled by gossip, false impressions ,or influences.

2) Do as I have, and clarify to the witnesses and parties that they do have a right to discuss the terms and conditions of their employment with others, however they should not discuss the questions you have asked them or their answers.

3)  Analyze whether there is a reasonable risk of witness tampering, retaliation or harm to a witness, evidence that may be destroyed or collusion with others to falsify testimony.  If, for instance, a respondent has allegedly threatened a complainant with consequences for reporting, it seems the NLRB would find that an order to maintain confidentiality outweighed the rights under Rule 7.

This is not new.  I wrote about the tension between the right to concerted activity and investigative confidentiality in my book, and found myself posting it recently in a Linked In forum.   Make sure you have a sound basis for requesting someone to refrain from discussing the interview, clarify the purpose, and never provide a blanket gag order.

Has Your Organization Prepared for Defensible Employment Investigations?

March 19, 2012

Investigative Preparedness

INTERNAL INVESTIGATION COMPETENCE: When an internal investigation is being scrutinized, it’s best to have prepared for the questions that will inevitably be asked. This is an update of an oldie-but-goodie that emphasizes the importance of consistency in practice in defending your investigations.

When it comes to defending investigative techniques, there is a simple standard to which attorneys and their clients should aspire; consistency and reason. For every single action or decision that an investigator takes, that investigator should be able to explain the rationale behind the decision or action, and that rationale should be sufficiently solid that it will dictate not only the investigators actions, but the organizations’ overall practice. Therefore, the practice should be consistent from investigation to investigation, interview to interview and organizational unit to organizational unit. This calls for the establishment of firm, well defined internal investigative practices and training internal investigators to use them.

Some large organizations routinely conduct investigations and have well-established policies and procedures, carefully developed protocol and guidelines for investigators to follow. Many, however, do not. Surprisingly, companies with reputations for being “smart” may not apply their intelligence to how investigations are done, allowing each investigator to pursue matters using their own individual expertise and preferences. This creates significant vulnerability when the organization’s practices are inevitably scrutinized. Then, the inconsistency will be at best identified as a form of sloppiness or at worst as evidence of bias.

Since the majority of organizations do not have full time investigators, and many only conduct a few investigations each year, it is not necessary for every organization to have elaborate manuals and procedures regarding investigations. There are, nevertheless, certain steps organizations should take in preparation to conduct high-quality investigations and to ensure a reasonable level of consistency from investigation to investigation:

Policy Requiring Cooperation
One of the most predictable and frustrating things that can happen in the course of an investigation is the refusal of a key individual to cooperate. This is especially so when the investigator has reason to believe that the reluctant or intransigent individual can provide essential data, it is important to have leverage to persuade employees to be forthcoming. While there are a variety of strategies that investigators can use to be persuasive, employers should have policies in place that require employees to cooperate with employer-initiated investigations. While policies are only words on paper, and threats of discipline for failing to cooperate should only be used as a last resort, this type of policy sets an expectation and a tone which is helpful in orienting employees to their duty to their employer.

Identify an Investigative Coordinator
Complaints are made throughout organizations, and every complaint calls for analysis and decision making about what steps should be taken to address the situation. While most organizations are leery of micromanagement, exposure can be significant in the face of poorly handled complaints. The importance of consistency in practice calls for the establishment of a process by which decisions are at least reviewed, if not made collaboratively with someone who has the “big picture.” That individual can ensure consistency and appropriateness of response. Called an “investigative coordinator” in some organizations, it is this person or persons who should receive reports from all complaints that have been made regarding misconduct or unlawful behavior. These complaints should be scrutinized for similarity to other matters and the manner in which those matters have been handled, thus contributing to consistent levels and types of responses.

Positions and Declarations
There are a number of investigative practices which are debatable – there are legitimate differences of opinion as to whether certain steps should be taken and certain methods used. Organizations should have firm positions on these matters, and they should be adhered to in each and every investigation that is conducted. Exceptions should be well documented and rare.
1. Tape Recording While under certain collective bargaining agreements or public laws, digital or electronic recording is required in employment investigations, in most work environments it is optional. Experts disagree on the value and importance of recording investigative interviews. Those who favor them point to the absolute certainty there can be independent verification of what was said, and the convenience of reviewing the tapes rather than relying on note taking. Opponents argue that recordings can provide fodder for manipulation (“what was happening during that long pause?”) and create a chilling effect on the interview. Many organizations record interviews and many do not. There should be consistency in this practice – if recordings are to be made, there should be clear technical requirements and ample equipment should be made available to investigators. Protocol for storage of tape or digital files must be established (i.e. for digital recordings, encryption standards). Most importantly, if recordings are to be made, they must be made for each and every interview conducted within an investigation.
2. File Review Investigators find that reviewing personnel files can be illuminating and helpful for a variety of reasons – however the timing of that review can be important. If an investigator reviews personnel files prior to interviewing parties, information might come to his or her attention that could be highly prejudicial and create bias.
Gerry has made a claim of inappropriate conduct towards his supervisor. In a routine review of his file, you find that he was suspended two years ago for coming to work under the influence of alcohol.
While one can declare that they are able to put aside impressions gained from possibly unrelated information, it might be argued that avoiding the situation altogether is preferable. Therefore, some organizations instruct investigators to only review personnel files after interviewing the subject. Of course, the argument against this is that should the file reveal substantive and previously undisclosed information, that a second interview might be necessary, thereby making the process less efficient. As with tape recording, this is an endlessly debatable matter, but organizations should have firm procedures for the timing of personnel file scrutiny.
3. Number of Investigators Particularly if investigators are not highly experienced, organizations might institute a policy that all interviews are conducted with two investigators present. Usually this is structured so that one individual asks the questions while the other serves as a mute observer and note taker. Some organizations believe that putting two investigators in a room with one subject can be intimidating and puts a damper on the rapport and intimacy necessary for an investigative interview. Defining the circumstances under which “two on one” and “one on one” interviews are conducted is essential. It is most essential that if a two-on-one model is used in any single interview, that it be used in all interviews in a particular investigation, and even better if it is used in all investigations.
4. Document Retention and Destruction Much fuss can be made about the contents of an investigative file. Organizations should ensure that from matter to matter that investigative files contain similar documents. Most important, there should be clear standards for retaining and destroying documents. Many investigators “clean up” or “fill in” their notes immediately following an interview. For instance, someone who has used abbreviations might fill in the full words to ensure that they will properly recall what was said – or misspellings might be corrected in notes made on a computer. It is essential that investigators have clear guidelines regarding the retention of prior versions of notes under these circumstances, and it is generally recommended that those prior versions be retained. Other record retention issues include the proper designation and labeling of documents considered to be privileged, the retention of drafts of reports or memoranda, and the appropriate handling of documents and items examined but which must be returned or otherwise disposed of.
5. Third Party Presence The presence of a third party (or a fourth party in the case of two-on-one interviews) is sometimes outside an organization’s control, such as an employee exercising Weingarten rights in a union setting. Many organizations relinquish what control they do have unnecessarily or by default. A careful review of Weingarten leaves several issues in the hands of the employer; for instance, an employer is not under any obligation to inform an individual of the right to the presence of a union representative unless that has been agreed to contractually. An employer has reasonable control of the interaction between the union representative and the employee during the interview. Some organizations take the position that you can never give employees too many rights, and provide notice to employees prior to or at the time of the interview that they are entitled to union representation. Others live by the letter of the law and only provide representation when it is requested in accordance with Weingarten. This is a matter of organizational policy and philosophy. Inconsistency in this area is problematic, and should be avoided by taking a clear and organized approach to union representation. This should include seating arrangements (will the union representative sit next to, or behind the employee?) and protocol for allowing consultation or participation (under what circumstances can the union representative initiate a consultation?)
In nonunion environments, employers have broad discretion as to whether and when employees might have a “support person” or “witness.” Some argue that this permission creates a higher level of faith in the investigation for employees and they point out that employees rarely exercise the permission if it is given. Others feel that an uninvolved third party’s presence merely increases the risk of information being shared inappropriately and that it does not offer any benefit to the organization or the parties.
Finally, most organizations take the position that attorneys are not permitted to be present when the employees they represent are interviewed in an internal investigation, however when the employee’s cooperation hinges on the presence of the attorney, some exceptions are made. It is important to have the individual or individuals who can authorize such exceptions clearly spelled out. In many organizations, the decision is made that if an attorney must be present for an essential interview to occur, that in house counsel will also be present.

Consistent Forms and Notices

Organizations are well served by creating consistent documentation to ensure investigative consistency and integrity. While not every step in an investigation is well served by filling in a form, organizations should consider putting the following in place:
1. An intake form An effective intake is essential for a smooth investigation. It is often very helpful for managers and supervisors, when being trained or instructed on the taking of complaints, to be provided a form that helps them conduct the intake in the proper manner. Once that form is completed, it should be sent, either by fax or electronically, to whomever serves as the organizational clearinghouse or complaint management. This is usually a human resources professional but can also be counsel or another designated party. Once received, the party serving as the clearinghouse can respond with a simple acknowledgement, can initiate a telephone consultation to ensure proper handling occurs, or can initiate a higher level intervention, such as an investigation. This transaction should then be documented on the intake form in the hands of the clearinghouse, and any follow up noted by either the initiating party or the clearinghouse. The result is a solid record of the complaint and a solid record of the action taken in response to the complaint. Because managers and supervisors recognize their liability of they are viewed as having ignored or failed to properly address certain complaints, they recognize that forwarding the form provides them appropriate protection and corroboration that action was taken.
2. Notices checklist There is a great deal of information to be transmitted at the outset of an interview, and therefore a great deal of information to be absorbed by the interviewee. In some cases, the information provided or not provided becomes a source of criticism of the investigation and its integrity. Subjects can claim that they were misled as to the purpose of the interview, or were guaranteed confidentiality that was then not honored. For this reason, it is wise to create a “checklist” of notices to be reviewed with interviewees, and which they can take with them at the conclusion of the interview. This checklist should include a review of the purpose of the interview, conditions for sharing or not sharing information, instructions regarding reprisal, explanation of how notes will be used and retained, advice or instruction regarding discussion of the investigation or interview with others, and notice as to the possible consequences if it determined that any party has violated policy. With a stable set of notices, investigators can practice reviewing the detailed information in a helpful and conversational way, and by asking interviewees to check or sign each item, help the interviewees to focus on essential information. The signed version of the checklist should be retained in the investigative file and a blank form offered to the subject for their own records. In the case of telephone interviews, there should be an effort to transmit the document to the interviewee at the time the investigation is commenced, and to receive a verbal affirmation of each item, which can then be recorded in the investigator’s notes.
3. Cover or summary sheet Since investigations are generally concluded months or even years prior to the time that discovery proceedings might call upon the investigator to recall them, a summary sheet can serve as an aid in recollection. A cover sheet should identify the complainant, witnesses and respondents, include a list of evidence reviewed (at least generally – a very detailed list should be included in the file), the period of time during which the investigation was conducted, and the date a report was issued verbally and/or in writing. Optionally, a brief summary of the allegations and findings can be incorporated into this summary sheet.

Smart Technology
Increasingly, employees leave “electronic footprints” that become valuable evidence in investigations. E-mails, cell phone records, pager history, web forms, IM’s and SMS messages are among the many types of records that are useful to investigators. Since these are generally produced and retained on employer-provided equipment, it is wise to plan for the discreet and prompt seizure of such records. Retrieval of SIM cards, backing up e-mails sent and received to ensure they are not deleted from the system, capturing cookies and browser history, retrieving data card records and obtaining surveillance tapes where appropriate should be anticipated well in advance of a need to investigate. A person with expertise in information technology should be able to institute investigative data retrieval with a simple request from the appropriate authority, and at that point, electronic records should be frozen (unalterable) and seized.

Written Statements

Employees who participate in interviews, as well as employees who bring complaints are either explicitly told or generally understand that they are providing information that will be scrutinized by the employer. Most interviewers also ask interviewees to in some manner attest that their statements are truthful. While interviewers are expected to take detailed notes, some employers believe it is appropriate to also have employees attest to a written document. This may take the form of a written statement prepared entirely by the interview subject or complainant, or, at the opposite end of the spectrum, a statement prepared by the investigator and based on the investigator’s notes. On the other hand, other employers do not generally use written statements, arguing that the verbal statement is sufficient, written statements are more burdensome and disadvantage the less literate, or that written statements eliminate an employee making a legitimate “correction” to an answer they gave in the stress of an investigative interview. Other employers counter that employees asked to sign a more formal document will be less likely to fabricate or to make spurious statements. One of the most highly debated investigative conventions, written statements or signed statements it should nevertheless be a practice that is consistent within any organization. What should also be clear to supervisors and managers is that when an employee complains, the employee’s reluctance or refusal to prepare a written statement does not affect the employer’s obligation to investigate.

In a large, decentralized organization, it is particularly helpful to have a rudimentary investigative protocol. There is no excuse for “unnecessary uniqueness” in an area where fairness, consistency and clear thinking are the hallmarks of defensibility.

Let me know your thoughts about what I have to say!

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