Conducting Internal Investigations
It seems that employees love to complain about anything, and it seems impossible to investigate everything. When employees feel, however, that you are not taking their complaints seriously enough or that you are ignoring them, they will find external sources for their complaints. These external sources range anywhere from the EEOC, the NLRB, Wage and Hour, private attorneys, and juries!! And juries love to punish you when they feel that you ignored an employee΄s legitimate complaint.
But what are legitimate complaints? We all know that an employer has a legal responsibility to investigate some complaints but not others. Can you make the distinction?
How you handle internal complaints can make all the difference of whether an employee goes externally with their complaints. It can make all the difference in whether the government or jury will find that you took immediate action and took prompt remedial action for legitimate complaints.
After all, is the time to learn how to do an internal investigation when you are suddenly faced with having to do one? Of course not. That΄s where our training can help!
Day 1 Schedule:
Lecture 1: Why employees complain
Why employees complain - and what they complain about
Identifying valid complaints
Should HR even be involved?
Leadership and organizational issues that must be addressed to minimize the risk of litigation
Lecture 2: What is protected activity?
Laws with Whistleblower Provisions: Title VII, ADEA, PDA, ADAAA, IRCA, USERRA, FMLA, FLSA, DFWA, FCRA, NLRA, OSHA, ECPA, SEC
In-depth review of Title VII of the Civil Rights Act and anti-discrimination and harassment laws
Employer obligations regarding when and how to conduct workplace investigations
What is prompt remedial action?
o Retaliation: Review of Supreme Court case that has redefined retaliation-and how to avoid claims
Lecture 3: Other Potential Laws from the States
Common laws that create additional "boundaries"
Retaliation: Review of Supreme Court case that has redefined retaliation-and how to avoid claims
Avoiding claims of negligent hiring, supervision, retention, and investigation
Assault & Battery: Knowing your responsibilities in handling toxic and dangerous employee situations
Defamation: Understanding slander and libel and how to avoid claims
Privacy: Understanding the three kinds of privacy issues
How to handle electronic communications and employee use - and abuse - of social media
Necessary company policies to minimize risks
Lecture 4: Planning the Investigation
Preplanning the investigation
How to determine who is an appropriate investigator
The skills an effective investigator must possess
The three things you must consider when selecting investigative team members
The potential pitfalls - and politics - to assess problems before a case begins
How to resolve leadership conflicts and turf issues in order to set the stage for an investigation
The preparation needed to minimize "he said/she said" investigations
Day 2 Schedule:
Lecture 1: Conducting Effective Interviews
Learning that preparation is the key to effective witness interviewing
Choosing and setting up an appropriate space for conducting effective interviews
Weingarten rights and requirements for interviewing in union shop environments
The "Bulls Eye" interviewing technique to keep your questioning on track
How to determine if a witness is telling the truth - or telling you a "story"
Techniques to gain witness cooperation and overcome reluctance
Strategies on how to deal with aggressive witnesses who fail to cooperate
Lecture 2: Reporting Your Findings
How to conduct a preliminary meeting to identify potential organizational risks
How to communicate assertively to stand behind your investigative work
How to present findings, succinctly, to enable leaders to visualize organizational impacts
Identifying current policies - and past practices - before making decisions
Recognizing leadership decisions that can lead to negligent retention claims
Determining when it becomes necessary to leverage internal or external legal team support
Lecture 3: Organizing Your Evidence
Using contemporary software to streamline the documentation collection and collation process
How to align allegations against applicable policies and laws
How to evaluate evidence to determine if you have collected enough
Lecture 4: Writing the Investigative Report
The various formats for investigative reports: memos vs. formal report structures
How to write an effective report that demonstrates good faith and minimizes risk
What does go into an investigative report-and what does not
When a case really is a "he said/she said" to keep leadership from making a poor decision
Effective communication to complainants and witnesses in order to close out a case
How to set up appropriate security protocols to safeguard investigative documents
How to avoid legal liability for prematurely disclosing or destroying evidence
Susan Fahey Desmond
Partner, New Orleans Office, Jackson Lewis LLP
Susan Fahey Desmond is a principal with Jackson Lewis PC. She has been representing management in all areas of labor and employment law for over 30 years. A noted author and speaker, Ms. Desmond is listed in Best Lawyers in America and has been named by Chambers USA as one of Americas leading business lawyers.