The document provides guidance on conducting workplace investigations. It emphasizes the importance of conducting investigations promptly, consistently, and competently to avoid legal issues. Key elements of a successful investigation include selecting an appropriate impartial investigator, gathering all relevant documents, and conducting effective interviews of complainants, accused parties, and witnesses. The document cautions that investigations must be taken seriously and all facts gathered before reaching conclusions or taking disciplinary action.
4. Continue paying attention
to gender gaps
Consider potential impact
of using AI in hiring
Make sure you’re
comfortable with your
reporting policies
5. Employees continue to
want more time away
from work
Push toward predictive
scheduling
More flexibility in
where/when they do their
work
Local wage increases
The Price of Top
TALENT
6. Federal LEVEL
DOL will continue to
work on application
of the overtime rule
Fluctuating work
week
The NLRB will
continue its retreat to
Pre-Obama rules
Continued discussion
of paid leave
Decreased regulation
wherever possible
OSHA will continue
rule-making
7. Continued
monitoring of
medical marijuana
Push for recreational
marijuana
Minimum wage
increase to $8.70/hr
Much talk about paid
family leave + little
or no action
Continued review of
arbitration agreements
Continued agency
review of independent
contractors
State LEVEL
9. Presented by Dave McCarty, Kegler Brown
+ Jim Anderson, InfoQuest
Private Eyes Are Watching
YOU
10.
11. Acting with purpose to defraud or knowing he/she
is facilitating a fraud, does any of the following:
Receives W/C benefits to which the person is not entitled
Makes, presents or causes to be made or presented a false or misleading
statement with the purpose of securing payment for goods or services
Alters, falsifies, destroys, conceals or removes any record or document
that is necessary to establish the validity of a claim
Enters into an agreement or conspiracy to defraud the BWC or a self-
insuring employer by making, presenting or causing to be made or
presented a false claim for W/C benefits
15. The “Monday Morning”
INJURY
Accident or injury reportedly occurred
late Friday or early Monday morning,
indicating that it actually occurred off
the job over the weekend
25. Accident or injury reportedly
occurred at a location away
from where the claimant
normally works
26. Claimant's coworkers express
doubt about whether the
accident or injury actually
occurred
Nothing can kill morale among good
employees quite like bad employees
“getting away with it”
31. Whenever possible,
get SIU involved!
Provide physical description
Home address
Work address
Hang out spots
Hobbies
Medical Appointments
All solid info of likely/potential fraud
41. Dave McCarty
Kegler Brown Hill + Ritter
dmccarty@keglerbrown.com
keglerbrown.com/mccarty
614-462-5469
Jim Anderson
Infoquest
janderson@infoquestinv.com
infoquestinv.com
(614) 761-3003
42. Employer as Debt Collector:
WAGE GARNISHMENT
Presented by
Larry McClatchey
43. Types of Withholding
from Personal Earnings
Wage Garnishment
Chapter 13
Bankruptcy Pay Orders
Domestic Court Orders
Administrative
Withholding Orders
44. Process + Procedure to
Garnish Wages
Employee Notice of Court
Proceedings to Collect Debt
Personal Earnings
Affidavit of
Judgment Creditor
Notice and Order to
Employer as “Garnishee”
45. Obligations of Creditors
+ Duties of Employer
Creditor's Affidavit
of Current Balance
Interim Report and
Answer of Garnishee
Provide Notices to Employee
Withhold and Pay Over Funds
48. Limitations
Statutory Limitation on
Amount of Garnishment
Disposable Earnings
Not Clearly Defined
Worksheet Calculation
of Voluntary Payment Amount
Bankruptcy or Statutory
Trusteeship
49. Priority of Competing
Garnishment Orders
Continuing Garnishment
Competing Garnishment
Priority Scheme
Higher Priority Claims
May Have Limits
65. Caesars
Entertainment
Overrules Purple Communications
Employees have no right to use employer-
provided email for non-work purposes
Employers maintain control over their property,
including communications systems, and may
establish nondiscriminatory rules restricting
employee use
66. Apogee
Retail
A facially neutral rule requiring confidentiality
during investigations is presumptively legal
Employers may require confidentiality even after
a workplace investigation has concluded if a
legitimate business interest outweighs the
impact on employees’ protected rights
Overruled Banner Estrella Medical Center
67. Joint Employer
TEST
Company must exercise
“substantial direct and
immediate” control over
the most important
elements of a worker’s job
69. Joint Employer
TEST
1 Hires or fires the employee
2 Supervises and controls the
employee’s work schedule
3 Determines the employee’s
rate and method of payment
4 Maintains the employee’s
employment records
76. hit an all-time high
for sexual harassment
violation pay-outs
2019
of EEOC charges filed
last year were for
retaliation
50%
were sexual
harassment/hostile
work environment
10%
85. What happens when
you’re faced with an
incident or complaint
that requires a full-
fledged investigation?
86.
87. LAWSUIT
claiming you retaliated
against the employee who
was a victim
LAWSUIT
by an employee who was
disciplined or fired after
being accused of misconduct
OR
90. Cadena v. Pacesetter
Pacesetter is a home improvement
company which sells windows, siding,
doors, and cabinets
In July 1996, Pacesetter hired
Cadena to work as a telemarketer
in its Lenexa, Kansas office
She had a supervisor named
Bauersfield
Several months after Cadena was
hired, Bauersfeld began subjecting
her to a steady barrage of severe
sexual harassment
93. Pacesetter had conducted
an investigation into the
conduct BUT:
The investigator never spoke
to Cadena, Bauersfeld or
Hawley
She didn’t know that Cadena
was the complainant or that
Bauersfeld was the accused
Not sure whether she had
ever been told the nature or
the specifics of the complaint
94.
95. Smith v. First Union
National Bank
Smith worked in the consumer
collections department and reported
to a man named Ronald Scoggins
Scoggins subjected Smith to a
barrage of threats and gender-
based insults
Scoggins' remarks began when he
informed Smith that he would have
preferred a male in the team leader
position because males are "natural
leaders”
96. Women should not
be in management
because they are
“too emotional to
handle a
managerial role”
97. Smith v. First Union
National Bank
Nov. 3, 1995: Smith made her first
formal complaint about Scoggins’
harassment to HR
HR launched an investigation,
Smith asked to keep her complaint
anonymous for fear of retaliation
First Union’s investigation focused
on Smith’s concerns about
Scoggin’s management style and
ignored her allegations of sexual
harassment
98. First Union never reprimanded
Scoggins for his harassment and
instead, put him on probation for
ninety days because of his
inappropriate management style
First Union allowed Scoggins to
remain in his position in the
Consumer Credit Department
99. Smith v. First Union
National Bank
Nov. 14, 1995: First Union
temporarily suspended Smith and
Scoggins with pay
Both employees were sent to its
Employee Assistance Program
First Union transferred Smith out of
Scoggins’ work team, but onto
another team on the same floor
Smith sued, First Union retaliated
100. First Union failed to exercise
reasonable care to prevent
Scoggins‘ harassment
1
They had a policy but it needs to
be "both reasonably designed +
reasonably effectual"
2
102. Smith v. First Union
National Bank
Hutto had never investigated a
sexual harassment claim when he
investigated Smith’s complaints
Hutto failed to ask Scoggins
whether he made any of the
sexually harassing remarks to Smith
If Hutto had asked Scoggins about
Smith's allegations of sexual
harassment, he would have
discovered that Scoggins admits to
making some of the harassing
remarks
106. Vandalism
Small thefts
Fights or threats of
violence
Safety issues
Sexual harassment
Discrimination
Misuse of a company’s
computer system
Information posted about
a company on a blog
Drug or alcohol abuse
107.
108. What if the “victim“
doesn’t want to
investigate?
109.
110.
111. Avoid Legal
PROBLEMS
Take workplace problems
seriously
Never ignore complaints of
wrongdoing
Always do initial research
before deciding an
investigation isn’t warranted
Make sure you know all the
facts before taking
disciplinary action
114. Key Elements
of a Successful
INVESTIGATION
Selecting an appropriate
investigator1
Gathering all the
documents2
Conducting effective
interviews3
Documenting the
investigation4
115. Key Elements
of a Successful
INVESTIGATION
Selecting an appropriate
investigator1
Knowledge of law + workplace
Neutral, objective + independent
Good judgment
Rigorous – disciplined thinker
Effective communicator
Ability to make a good witness
121. Key Elements
of a Successful
INVESTIGATION
Gathering all the
documents2
E-mails – work with I.T.
Review employee privacy policy
Document retention policy +
procedures
122.
123. Key Elements
of a Successful
INVESTIGATION
Conducting effective
interviews3
Begin promptly
Preliminary statement or checklist
Consider the order of interviews
Limit those present for interviews
Appropriately address refusals to
participate
124. Preliminary
Statement or
CHECKLIST
Outlines reason for the
interview and the process
that will be followed
Includes information about
confidentiality +
interviewer’s contact info
Have each witness initial
the document
Provide a copy to the
witness during the interview
125. Who to
INTERVIEW
Complainant + accused Known witnesses
Additional witnesses
identified through
interviews
Re-interviews
129. Can a co-worker the
employee requests
attend?
No – participation of others is undesirable
130. Can a lawyer attend?
This request typically should be rejected
131. Tape recorder itself might chill
the dialogue1
Company has little control
over what is done with it2
Recorded could be presented
publicly3
Requests
to Tape
Record the
Interview
132. Make sure recorder is in plain
view1
Interviewer must state
date/time/place, name of
interviewer and witness
2
Witness must consent on tape
to the recording3
Confirm that interview was
recorder with consent at the
end of interview
4
If You
Must Tape
Record…
140. Rowe v. Guardian
Automotive Products, Inc.
Two employees lived together – male
employee assaulted the female
employee (Rowe) at their residence
He was charged with assault and
convicted
Information came to the company’s
attention when the male employee
later received a jail sentence for
driving without a license
Guardian Automotive discovered a
history of violence and decided to
terminate the male employee
141. Rowe v. Guardian
Automotive Products, Inc.
Rowe refused to cooperate with
Guardian’s investigation, arguing it
invaded her privacy
She pointed out that the assault
did not happen at work
Despite those facts, the company
terminated her employment
The court upheld this decision,
dismissing the plaintiff’s invasion of
privacy case on summary judgment
144. Knowledge Perceive through senses
Hearsay Heard from someone else
Assumptions Accumulated conclusions + opinions
145. Fact or Conclusion?
“He harassed her all the
time.”
“He was very hostile
toward us.”
“It has been a very difficult
department to work in.” “He hurt her.”
146. Conclusion v. Specific Facts
He hurt her.A
What, specifically, led you to believe he hurt her?Q
He grabbed her arm and when he let go I could see red
marks where his fingers had been.A
149. Key Elements
of a Successful
INVESTIGATION
Documenting the
Investigation4
Attempts to reach unavailable
witnesses
Notes
Witness statements or affidavits
Investigative report
Investigative file
152. Investigative
REPORT
Avoid drafts and “updates” Sets out all pertinent facts
Separate report for
additional claims
Typically does not
recommend particular action
157. Obtain waivers + releases
from employees who present
a litigation risk
1
Prevent quid pro quo
harassment2
Document termination +
layoff decisions3
Treat departing employees
with respect4
167. FMLA Gives you the right to be off work for
12 weeks
Workers’ Comp Gives you pay due to your work-
related injury
ADA Gives you rights to accommodations
Short-Term
Disability
If available, gives money while off
work
Employer’s
Practices + Policies
May entitle you to protection or
compensation depending on the policy
170. ADA
All Employees Eligible
Substantial Limitation of Major Life Activity
Requires Dialogue
“Reasonable Accommodation”
Can Mean Anything
Retaliation, Discrimination,
Failure to Participate
171. Short- + Long-
Term Disability
Defined + Driven by Plan Documents
Not Legally Required
Compensation for Employees on Leave
May Have Employee Co-Pays +
Eligibility Requirements
172. Can require use of
certain benefits
(vacation) during leave
Can obligate/prohibit
employers in actions
Can permit other
employees to assist
Treatment of others
critical question
Employer
POLICIES
188. Know your
obligations,
when you see
something ACT
Communicate
early and often
Know your
policies + how
they interact
BRENDAN’S TIPS
Handling Conditions
Recognize
various reports
and where you
can get them
189. Engage with
employee early
+ often
Press doctors
whenever
possible
Light duty is a
2-way street
BRENDAN’S TIPS
Handling Conditions
Know
employee’s
responsibilities
190. Watch out for
repeat offenders
Attendance still
matters
Be very careful
about
telecommuting
BRENDAN’S TIPS
Handling Conditions
Sometimes you
have to pick
your poison
191. Brendan Feheley
Kegler Brown Hill + Ritter
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614-462-5482