Photo: Uber.com/media
Photo: Uber.com/media

On June 13, 2017, Uber released to its employees excerpts of a damning independent investigation report authored by independent investigators Eric Holder and Tammy Albarran, attorneys with the law firm of Covington & Burling LLP.  On February 19, 2017, former Uber engineer Susan Fowler published a blog post detailing allegations of harassment, discrimination and retaliation at the company during her tenure.  She also decried the ineffectiveness of Uber’s policies and procedures in addressing such workplace issues.  The very next day Uber hired Former Attorney General Holder and his law firm to conduct a review of  the issues raised by Fowler as well as diversity and inclusion more broadly at Uber. Continue Reading Holder’s Advice to Uber: Focus on Tone at the Top, Trust, Transformation and Accountability

On March 24, 2017, the United States Court of Appeals for the District of Columbia Circuit in Banner Health System v. NLRB, 851 F.3d 35 (D.C. Cir. 2017) again declined to rule on the National Labor Relations Board’s (“NLRB” or “Board”) position that employers cannot prohibit discussions of matters under investigation absent a specific, case-by-case determination supporting the need for confidentiality. As a result, the Board’s position that employers violate Section 8(a)(1) of the National Labor Relations Act (NLRA) by restricting such discussions absent case-specific evidence that “witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up” continues in force, with no clear disapproval from the courts. Continue Reading NLRB’s Case-By-Case Scrutiny Standard For Investigative Confidentiality Rules Continues

I recently attended a 2-day training program in Boston conducted by the Massachusetts Commission Against Discrimination (MCAD) called Conducting Internal Discrimination Complaint Investigations. This was a high quality training program that incorporated carefully thought out modules with practical exercises conducted by Rebecca Shuster, Director of Training at MCAD, and Attorney Judy S. Kalisker, Principal, Compliance Plus. While I have conducted discrimination investigations many times, this type of high quality investigation training is so hard to come by that it is worth spreading the word about it. Here are a few of my take-aways from the training:

1. Understand when the duty to investigate kicks in

Businesses should have handbooks that contain anti-discrimination policies that provide for an investigative process when they receive concerns from employees of discriminatory treatment. However, supervisors sometimes believe erroneously that only more serious concerns require investigating and do not investigate when they perceive a concern to be trivial. In order to protect the interests of the business, supervisors are well advised to look into all concerns raised by employees. While every concern does not necessarily require a week-long investigation, the company must look into issues in order to understand whether the employee has been discriminated against or whether a company policy has been violated. Further, without looking into an employee’s concerns, the company will not know whether other employees are also impacted and could lose a defense to a future claim of discrimination. Once deciding that an investigation should be done, another important consideration is deciding who will conduct it.

2. Decide who will conduct the investigation

If an investigation is to have any value, it must be conducted by someone who has been trained in conducting investigations or has experience doing so. The credibility of the investigation findings and results may be discredited if the investigator is not qualified. Every investigator must be prepared that his or her investigation process and findings will be closely scrutinized. Also, if the person accused of the discriminatory, harassing or retaliatory conduct is a high level or senior manager, the company should strongly consider hiring an investigator outside of the organization in order to protect the integrity of the investigation. The outside investigator could be its employment counsel or a third party trained in conducting investigations. If a third party is hired, the company should consider utilizing its employment counsel as the liaison with the investigator to be able to keep conversations with the third party confidential. However, it is very unlikely that the company will want to keep the investigative report itself confidential in the context of litigation. These are consideration that must be discussed and analyzed prior to beginning the investigation. Once the investigator has been selected, it is worth taking the time to plan the investigation.

3. Take the time to plan the investigation

While there are sometimes circumstances when investigators want to begin the investigation immediately, most of the time the investigator can take 24 hours to thoughtfully plan his or her course of action. The investigator must confirm the scope of the investigation by determining the legal issues being looked into, the witnesses to be interviewed (and order of witness interviews) and the documents to be reviewed. While the scope of the investigation may change during the investigation, it should not broaden into encompassing every area of employment dissatisfaction that the employee has. The investigator must understand the scope of the investigation and tactfully manage its parameters. In order to successfully do that, the investigator must have experience and skills.

4. Conduct interviews – skill and practice required

One of the objectives in conducting an investigation is to find out what is going on in the workplace. To find out that type of sensitive information and assess its accuracy requires strong interpersonal skills. It requires the ability to listen and to adapt the interview questions as information is disclosed. Most importantly, it involves establishing trust with witnesses so that they are comfortable disclosing what is often very personal information. Not everyone in a supervisory position possesses the skills necessary to conduct a quality investigation. The company should take the time to identify management personnel who do possess those qualities and who will be responsible for conducting investigations.

5. Make findings of fact and recommendations – depending on the scope of the investigation

The investigator must understand from the outset whether he or she is just making findings of fact or is being asked to make recommendations based on the findings. Sometimes a company only wants an investigator to find facts and it will decide the appropriate action to be taken. Therefore, the investigator should understand exactly what he or she is being asked to do. Finally, the investigator’s findings are often captured in a report that is given to select company senior management for review and consideration.

The MCAD investigation training highlights the complexity involved in conducting investigations that requires thoughtful analysis. It is well worth taking the time to work through these issues since investigations do not just have, potentially, a legal impact on the company, but set the tone among the workforce as to how the company addresses concerns raised in the workplace.

This MCAD program is held in Boston and takes place once a year.  Read more about it here.

Even when an employer takes prompt remedial action to defeat a sexual harassment claim, it may still be liable for retaliation.  A NH employer was reminded of this recently in Rand v. Town of Exeter (11-CV-55-PB) (10/2/13).

Brenda Rand worked as a solid waste transfer operator for the Town’s Highway Department.  Rand alleged that a coworker sexually assaulted her one morning at the transfer station when both were alone.  Rand confided in a coworker 5 days after the incident and then reported it to the HR Director and her supervisors.

To prove sexual harassment by a coworker, an employee must show that the employer knew or should have known of the harassment yet failed to take prompt remedial action.

On a motion for summary judgment filed by the employer, the federal trial court found that the Town had taken prompt and remedial action when it learned of Rand’s complaint.  As the Court explained, the company HR Director conducted an investigation into the allegations, prohibited the alleged harasser from going to Rand’s worksite during the investigation, and had interviewed 3 of the witnesses within 3 days of learning of the complaint and had a report prepared 5 days after the final interview.  The Town informed Rand of the investigation outcome two weeks later.

The Court noted that while Rand disagreed with the Town’s internal investigation outcome, the issue as to employer liability is whether the employer is negligent in allowing the harassment to occur and whether the employer took reasonable steps to respond.  Here, the Town had an anti-discrimination policy, no reason to anticipate the alleged assault, and took prompt and effective action to respond to and investigate Rand’s complaint.  As a result of the steps taken by the employer, the federal Title VII and state harassment claims were dismissed.

As this case shows, anti-discrimination policies and effective internal investigations play important roles in protecting companies from workplace liability.  Taking complaints seriously, dealing with them objectively and promptly, and taking appropriate remedial measures, if necessary, following the investigation may shield employers from claims.

Unfortunately for this employer, the case is not done.  While the harassment claims were dismissed, the Court allowed Rand’s retaliation claims to continue.   Rand had produced sufficient evidence to support her complaint, including negative performance reviews and reprimands after her complaint and evidence employees were told to avoid her.  Additionally, the Town placed Rand on administrative leave and refused to turn over her personnel file shortly after Rand filed an EEOC complaint.  As the Court explained, motive and intent are better suited for the jury, and a trial has been scheduled for February 2014.

With retaliation at the top of the list of discrimination filings, employers must take heed.  An employee may lose on the underlying discrimination claim and still be successful on the retaliation claim for conduct occurring after the complaint. Employers should have strong policies against retaliation and should train all supervisors and employees on this prohibited conduct.  Do not learn this lesson the hard way.

 

In July 2012 the National Labor Relations Board (“NLRB” or the “Board”) issued its decision in Banner Health System and James A. Navarro essentially instructing those of us who conduct workplace investigations to avoid our standard “please keep what we discussed confidential”  admonition to witnesses lest we find ourselves and our clients in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”).  We responded to that decision with a collective, “Huh?”.   The request for confidentiality is so routine that most of us say it without even thinking about it.  The need for confidentiality also seems incredibly obvious to those of us who are hired to come in and conduct independent  evaluations of sensitive workplace issues.  Our very appearance in the parking lot generally gets the rumor mill started, after all.

In Banner Health the Board  indicated that to justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ rights to engaged in concerted activity.  The Board decided that the proffered justification, to protect the integrity of the investigation, was insufficient.  Once again, “Huh?”.

Rather, the employer  must first determine whether 1) any investigation witnesses needed protection; 2) evidence was in danger of being destroyed;  3) testimony was in danger of being fabricated; or 4) there was a need to prevent a cover-up.

The Office of the General Counsel of the NLRB issued an Advice Memorandum on January 29, 2013 on a case submitted for advice regarding whether an employer’s confidentiality rule unlawfully interferes with employees Section 7 rights by precluding them from disclosing information about ongoing investigations into employee misconduct.  The employer, Verso Paper, has a Code of Conduct which includes a provision which says:

Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

The General Counsel found this rule overbroad because an employer, in the eyes of the NLRB cannot have a blanket prohibition; rather it must assess the need for confidentiality on a case-by-case basis.

What does this mean for employers who conduct their own investigations in house and for those of us employers hire to do them in extraordinary cases?   See my prior post on when a company should hire and outside investigator HERE.

Although an Advice Memorandum does not have the authority of a Board decision or even a decision issued by a single Administrative Law Judge, we do need to pay attention to this one.  It is consistent with Banner Health and tells us not only that we need to do an individual assessment before issuing warnings in our pre-interview discussion with witnesses but also that a blanket confidentiality rule will not pass muster with the NLRB.

A dilemma for certain for employers…internal investigations can be time-consuming, intrusive and costly; and if done incorrectly, the company can be exposed to considerable liability.  So when is it appropriate to bring someone in from the outside to look into allegations of improper behavior in the workplace?

Seasoned human resource professionals are more than qualified to conduct the lion’s share of internal investigations. They review documents, emails and policies, interview witnesses and routinely get to the bottom of whatever may be going on efficiently and in short order.  Based on their findings and knowledge of the inner workings of the company, they make recommendations to management and close the loop with the complaining employee and the accused.  An outside investigator will be the exception for the company with an experienced HR Department or Manager.

An experienced neutral outside investigator is a necessity, however, when

1)      The allegations involve as either complaining party or target of the investigation a member of the HR Department or upper management (officer, director, member of the board of directors).

2)      The accusations have been made public.  If the allegations have been reported in the press or are even widely known within the company, an outside presence is a must  to preserve the integrity of the investigative process and insure that the process is viewed externally as having been fair.

3)      An attorney should be involved in order to at least partially maintain the attorney/client privilege.  This may be the case when the employer’s own employment counsel conducts the investigation.

4)      The situation is highly confidential or sensitive.

5)      There are allegations of criminal behavior and cooperation with law enforcement is necessary.

6)      There are other reasons to question whether the in house team is sufficiently experienced or will be viewed as unbiased and objective.

 

When deciding whether to hire an outside investigator, whether that investigator is the company’s own attorney or someone completely independent, management and HR should consider the individuals and issues to be investigated and determine whether outside guidance will assist the company to avoid risk of future litigation or provide important defenses if litigation occurs.

The United States District Court decision issued on February 22, 2013, Walker v. N.H. Administrative Office of the Court (“AOC”), in which it ruled on what portions of an employer’s investigation file should be turned over to the plaintiff.  The case was filed by the Administrator of the estate of the former clerk of a circuit court in Littleton alleging that the employee, Michele Walker, experienced harassment, discrimination and retaliation so severe that it caused her to commit suicide.  The AOC,  to which Walker formally complained, hired counsel and an independent investigator to conduct an investigation into the allegations of workplace discrimination and harassment.

The plaintiff filed a motion asking for the complete file of the investigator.  The AOC claimed that documentation from the file including the investigator’s handwritten notes and communications between the investigator and the AOC’s attorney were protected from disclosure due either to attorney client privilege or because they were work product prepared in anticipation of litigation.  The court ruled that all but a small portion of the documents at issue were subject to  discovery.  The privileged documents included:

  • Documents post-dating the investigation prepared in anticipation of litigation including portions of the investigation report and correspondence from the investigator contained her mental impressions and opinions.
  • Email communications from the attorney for the AOC to the investigator giving advice about what might be subject to disclosure in future litigation.

Most of the investigation report including the factual summaries of witness interviews (including that of Walker) had to be produced.  The court ruled that because the plaintiff who was the primary witness was deceased, there was no way the estate could realistically obtain a substantial equivalent to the evidence being sought.  The court also determined that the AOC could not use its investigation as both a sword and a shield. The AOC  claimed in its defense that it conducted a prompt and thorough investigation of Walker’s allegations; it could not now claim that the documentation which memorialized the investigation was not subject to discovery.

Employers who commission investigations and investigators themselves should assume that investigation files and communications between investigator and employer representatives will be discoverable in future litigation.  If  one is going to seek to shield a particular document or category of documents from discovery, counsel should be included in the communication.  The documents should be marked  “Confidential/Attorney-Client Privileged.”   Efforts should be made to segregate privileged communications from the rest of the file and mark them as such.   This will not guaranty that the document will not have to be produced in the future,  but it might help to show that the intent in creating them was to prepare for a possible lawsuit.