2010 Managing Labor and Employee Relations Seminar
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This seminar was given to clients and friends of the Columbus, Ohio, law firm of Kegler, Brown, Hill & Ritter on March 11, 2010. Topics covered include USERRA, hiring and firing, employment law updates, workplace investigations, employee benefits, COBRA, HIPAA, ERISA, harassment, discrimination and more.
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2010 Managing Labor and Employee Relations Seminar
- 1. Welcome to Kegler Brown’s Managing Labor & Employee Relations Seminar!
- 3. WHEN IT’S OVER OVER THERE- WHAT YOU NEED TO KNOW ABOUT VETERANS & USERRA Lawrence F. Feheley Labor Seminar – March 11, 2010
- 25. Margeaux Kimbrough Labor Seminar – March 11, 2010 AN OVERVIEW OF RECENT TRENDS IN LABOR LAW
- 28. Caregivers
- 47. Discrimination Against Male Caregivers
- 53. Discrimination Against Individuals with Disabilities
- 65. Break: Will Return at 10:35
- 66. Loriann E. Fuhrer Labor Seminar – March 11, 2010 HOW TO CONDUCT A PROPER INVESTIGATION AND WHAT CAN HAPPEN IF YOU DON’T
- 92. Kristy N. Britsch Labor Seminar – March 11, 2010 ERISA, COBRA and HIPAA, Oh My! Your Guide to Employee Benefits
- 149. Brendan P. Feheley Labor Seminar – March 11, 2010 FROM PAY STUBS TO PINK SLIPS: HIRING AND FIRING IN OHIO
- 172. Thank You For Attending Hope to See You Next Year!
Hinweis der Redaktion
- Employee files a formal complaint Employee reports a questionable situation Employee is suspected of misconduct Vandalism; small thefts Fights or threats of violence Safety issues
- Independence: Company can define the investigation in very broad terms (e.g. “investigate the complaint brought by X alleging Y did Z”), but the investigator should take it from there. [Collaboration in planning the logistics of an investigation (i.e. determining the appropriate location for interviews, identifying obstacles to contacting witnesses, being briefed on other events in the business that might affect participation) is to be expected when an investigator is from outside the organization. This collaboration should involve the investigator stating his or requirements and then the company liaison working to provide what the investigator needs. This should not involve the company asking the investigator to use or pursue a particular strategy.]
- There’s a list in the materials of documents to gather and review before you begin interviews. In lawsuits, cases are often won or lost based on the documents. One very damaging memo or a few emails can make a huge difference. So, you should think about where relevant documents might be and search diligently for them.
- Tape-recording: Recording through interviewer’s notes is best. If must tape record, make sure recorder is in plain view and that the interviewer states, with the recorder running, the date, time and place of the interview, and the name of the interviewer and witness. Make sure witness consents on tape to the recording. At the end of the interview, confirm that interview was recorded with witness’s consent. Lie detector tests are typically not a legal option. Except in limited circumstances, it violates federal law for an employer to force an employee to take a lie detector test. The Employee Polygraph Protection Act , 29 U.S.C.A. sections 2001-2009 (West. 2007). Confidentiality: Explain that you will need to share the information to investigate effectively. But, ask the witness to keep your conversation confidential. Preliminary statement or checklist: A common strategy used to suggest that an investigator was not neutral or was in some way unfair is to represent that a witness was given misinformation by the investigator or was unaware of the actual purpose or process of the interview. Many investigators will use a prepared statement or checklist that outlines certain information about the reason for the interview and the process that will be followed, including information about confidentiality, and provides contact information for the interviewer. It is a good practice to have each witness initial this document and to provide a copy to the witness during the interview. [More information on the specific contents of this statement or checklist in the materials.] Representatives: Typically best to permit the complaining person or alleged harasser to have an attorney or other representative present at the interview – may have a legal right to (union representation; Weingarten rights have been extended by some courts to non-union employees). Set ground rules that representative should merely observe to the greatest extent possible.
- [Interviewing the Complainant is the main event of every sexual harassment investigation. The interviewer should plan to spend several hours with the Complainant, even for the simplest of complaints. Although it would seem that complainants would relish the opportunity to tell their story against an alleged harasser, there are myriad reasons why complainants can be reluctant to testify. Many complainants are concerned about retaliation, being disciplined or losing their jobs, despite assurances to the contrary. Often complainants, even though they presumably made the complaint to make the harasser stop his conduct, “don’t want to get him in trouble,” and express genuine concern for what action the company may take against him. Complainants may also fear physical retaliation or abuse from the harasser, or being outcast by co-workers sympathetic to the harasser. Complainants represented by counsel are more likely not to fear retaliation and are generally more at ease attacking the harasser. If the Complainant is totally uncooperative, the investigation should nonetheless continue, and the investigator should gather as much information as possible from witnesses and other sources. In this case, “hearsay” becomes more important, i.e., what the complainant told others about the complaint. The investigative report should reflect the fact the complainant was uncooperative, citing her reasons if known.]
- Your job in any investigation is to get all the relevant information. In order to do that, you need to get people to talk to you about what they know. Hopefully these techniques will help you get better and more information when you are investigating. Start with open-ended questions: “What have you heard
- Couple of things I like about these two questions: 1. Are open-ended. They don’t try to pigeon-hole the witness’s knowledge, but rather invite the witness to start to tell you about all his or her knowledge on the topic. They assume the witness has knowledge on the topic. If you change the question very slightly to “Do you have knowledge about _____,” what answer do you get? “No.” I ask that question in a deposition when I want the witness to claim no knowledge about a subject. It is too easy to “no.” But, when you ask “What do you know, it sets up the expectation that they know something, and more often you will get the information they know. Sound of Silence – Sometimes a witness gives short answers and you know they have more to say, so you want to encourage them to continue talking. The best way I’ve learned is to give the silent and expectant nod. Your job is not over, though, when they answer these questions.
- In order to successfully deal with witness conclusions or opinions, you have to first recognize them as non-fact. Then, ask the necessary follow-up questions to determine whether the witness has any factual basis for the conclusions/opinions and what those facts are. If you stop at the conclusion, you will miss a lot of relevant facts.
- As an investigator, you sometimes have a “He Said/She Said” situation. It can seem like a real roadblock -- how do you resolve that? Look for corroborating evidence.
- Also, discuss other contrary techniques?
- In the case of a witness who may have key information, delaying the findings in an investigation pending locating the witness is often appropriate, despite the need for timeliness.
- Credibility: [indicating a recognition that credibility determinations are considered differently than facts learned during the investigation] The investigator’s note-taking goal is to be able to reconstruct what he or she was told, even after the passage of time, based on what is in the investigative file. Make your notes as detailed as possible; (if someone sitting in on the interview, consider asking them to take verbatim notes); do not include interpretations, beliefs, assumptions or conclusions. [transcript] Many investigators promptly (within 12-24 hours) review and clean up their notes, clarifying the contents so they are more useful when memory fades.
- During the interview, prepare the witness that you will need to follow-up with them once you have the summary or affidavit prepared; discuss how to get it to them in a confidential manner and what they need to do if they need to make changes.
- Providing interim reports or “updates” during the investigation gives the appearance that the direction of the investigation is being decided by someone other than the investigator; such a report may also be viewed to be a basis for alleged retaliatory behavior during the course of the investigation. Format will depend on the scope of the investigation. At minimum, will provide identity of parties, nature of complaint, pertinent background information about the company and its policies, and a summary of the facts and statements of the witnesses. Also provides the timeframe of the investigation, dates of interviews, who was present at interviews, any restrictions on the investigation, and additional information, if any, required for a complete investigation. If a subsequent claim arises during the investigation that can survive on its own, such as a retaliation claim, ordinarily a second investigation should be conducted and a second report prepared. Written reports help employer to demonstrate it took appropriate action and conducted a professional, thorough investigation. Informal “updates” or “off-the-record” conversations prior to written report are discoverable. If an action is filed, the plaintiff has a right to obtain a copy of the report. The company may share the report with the complainant without a formal complaint being filed. Ordinarily, the report will not recommend particular action by the company (e.g., discipline of the accused harasser). Frequently, the scope of the investigative assignment is defined in such a way that the investigator is NOT asked to give an opinion on the ultimate question (i.e., whether sexual harassment occurred). Investigator’s opinion, even if given, may not be admissible at trial.
- Negligent Hiring Five requirements “ It is all one to me if a man comes from Sing Sing Prison or Harvard. We hire a man, not his history.” -Malcolm S. Forbes
- Foreseeable - flames or red coils warn you that you will be burned if you touch the stove. Employees should know in advance that poor conduct or performance will certainly result in consequences. Immediate - when you touch a hot stove, you know right away that you did something wrong. An Employee should be told quickly if they are not meeting expectations. Do it at the time or not at all. Don’t react just to the final straw. Impersonal - the fact that you get burned is a function of the stove, not who you are or who likes or dislikes you. Discipline must reflect the offense, not the person who did it. Discipline is for behavior modification – not for punishment or to vent a personal grudge. Consistent - regardless of who touches the stove, the result will be the same each and every time. Discipline cannot be arbitrary; Nor can it differ, for the same offense, from one person to the next.