OSBA 2015 CAPITAL CONFERENCE: Mock...

OSBA 2015 CAPITAL CONFERENCE:

Mock Investigation November 8-11, 2015

Allison L. Goico (513) 977-8613 [email protected] Ryan W. Green

(513) 977-8552 [email protected]

Anjali P. Chavan (614) 628-6887 [email protected]

J. Corey Asay (513) 977-8235 [email protected]

Janay M. Stevens (614) 628-6945 [email protected]

The Complaint

• “My boss Jason is sexually harassing me and now he wrote me up for being late when he said it was okay to begin with.”

» Allison

Investigation #1

• The District Assistant Superintendent, Ryan, is Going to Handle This On His Own without HR

Activity

• Break into groups and discuss the investigation

Investigation #2

• The District Superintendent, Ryan, Alerts HR to the Complaint and HR is Going to Handle

Activity

• Break into groups and discuss the investigation

Why do we conduct investigations into misconduct in the workplace? • To stop inappropriate behavior.

• To create a positive place to work.

• To protect against liability.

• To limit exposure.

• To save money.

Any complaint, written or oral, that an employee has been discriminated against and/or harassed because of his/her legally protected status, including the following:

Race; Color; Ancestry; National Origin, Citizenship; Religion; Creed; Sex; Pregnancy; Age; Disability; Military Service; or Engagement in Protected Activities (e.g., filing a workers’ compensation claim, requesting FMLA leave, or complaining about discrimination).

For what reasons should an employer conduct an investigation?

Who should conduct the investigation? • A qualified, non-interested, and non-biased party -

preferably someone from human resources.

TOP 10 TIPS FOR SUCCESSFUL INVESTIGATIONS

1. Prevent Adopt a Written Complaint Policy that Promotes the Employer’s Equal

Employment Opportunity Practices and Makes Employees Aware that Investigations Will Follow Complaints of Discrimination.

“The best defense is a strong offense.” - Be on the offensive in preventing discrimination and encouraging employees to trust the employer.

A well written complaint policy provides an employer an affirmative defense to a sexual harassment lawsuit if the employee fails to make use of the policy.

The policy should encourage employees to bring legitimate complaints to the employer and allow for various avenues through which the employee can submit complaints.

Conduct a Preliminary Investigation at the Outset: • Determine whether to: 1. place the accused on immediate leave; 2. temporarily transfer employees; 3. change supervisory responsibilities; or 4. be concerned about any safety issues.

• Identify potential witnesses and create a witness list. • Determine whether there have been other complaints about the

accused.

2. Pre-Investigate

2. Pre-Investigate (cont.)

Conduct a Preliminary Investigation at the Outset: • Prepare a witness list, a timeline, and a

chronology of witness interviews. • Prepare an outline of questions. • Consult policies about procedures,

particularly any applicable CBA. • Consider consulting an attorney.

3. Choose the Investigator

Select a Qualified, Prudent, Diplomatic, and Uninterested Investigator:

• Consider someone from outside of the department in which the complainant works.

• The investigator must have a reputation for credibility and trustworthiness.

• Consider including a witness in all interviews.

Contemporaneous Documentation Can Prove a Lack of Discrimination:

• Keep notes of all interviews.

• Accurately date all notes of interviews.

4. Document

5. Listen to All Sides of the Story

Interview the Complainant: • Identify a location that allows for privacy and security for the

complainant. • Ask if the complainant has experienced any retaliation for filing the

complaint. • Reiterate the employer’s commitment to neutrality and impartiality in

the investigation. • Do not promise confidentiality but state that information will be

distributed only on a need-to-know basis. • Ask open-ended questions. • Ask for additional witness’ names. • Pay attention to gestures and other non-verbal clues (credibility).

Interview the Witnesses: • Advise witnesses that it is an internal investigation and describe the

purpose of the investigation. • Review applicable policies. • Advise that no judgments have been made about the validity of the

complaint. • Do not promise confidentiality. • Ask open-ended questions. • Tell the witness not to discuss the interview with others. • Reiterate that retaliation against the complainant or others is strictly

prohibited.



Interview the Accused: • Consider having a witness present. • State that this is an internal

investigation and the purpose of the investigation.

• Tell the employee that he/she is suspected of misconduct.

• Reveal who the complainant is, if appropriate.

• Review applicable policies.

7. Listen to All Sides of the Story (cont.)

Interview the Accused: • Advise that no judgments have been made about the validity

of the complaint. • Give full opportunity for a response to each accusation. • Pay attention to gestures and other non-verbal clues

(credibility). • If you suspect that the witness is lying, use fact-based

questions to get back on track. • Ask for additional witness’ names. • Reiterate that retaliation against the complainant or others is

prohibited.

Analyze the Results of the Investigation:

Review your notes and ask yourself:

1. Were the witnesses credible?

2. Do you know what happened based on what you’ve learned?

8. Close the Investigation


Determine the Outcome: • If you have reasonable evidence that the alleged conduct did occur:

» (1) Assess the severity.

» (2) Ensure that the discipline chosen is consistent with past practices.

» (3) Follow applicable policies.

» (4) Document the disciplinary actions taken.

» (5) Communicate the decision to the complainant and the accused employee.

Determine the Outcome (cont’d): If you have reasonable evidence that the alleged conduct did not occur:

1. Tell the accused employee that the results do not substantiate the complaint.

2. Reiterate applicable policy.

3. Remind the employee that retaliation against the complainant or witnesses is strictly prohibited.

4. Communicate the decision to the complainant.


9. Close the Investigation Determine the Outcome (cont’d). • If the investigative results are unclear:

» (1) Follow the steps for unsubstantiated claims.

» (2) Consider a second level of investigation.

» (3) Continue to monitor the workplace.

• Document the results of the investigation and your conversations with the complainant and the accused.

• Keep investigation files current with wrap-up information on the investigation and subsequent activity.

10. Document – Document – Document.

42

Allison L. Goico (513) 977-8613 [email protected]

Ryan W. Green (513) 977-8552 [email protected]

Anjali P. Chavan (614) 628-6887 [email protected]

J. Corey Asay (513) 977-8235 [email protected]

Janay M. Stevens (614) 628-6945 [email protected]

OSBA 2015 CAPITAL CONFERENCE: Mock...

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