Tag: Workplace Investigations

Introducing Employment Law Problems

Published by Brett Holubeck on April 6, 2021

I’ve re-branded my podcast as Employment Law Problems.

On the ~~second episode of Work Law Problems,~~ second episode of Employment Law Problems, I discuss one of my favorite workplace topics: Workplace Investigations.

Workplace investigations are one of the most critical steps to respond to any employment law or other workplace problem. Unfortunately, many companies are ill prepared to conduct an investigation or do so in a haphazard manner. In this episode, I review how companies can successfully conduct investigations in the workplace.

The first part of the episode covers what companies should do before an investigation occurs including training managers, having a handbook, and having procedures in place for employees to raise complaints.

The second part of the episode concerns how to conduct an investigation including the biggest problems with investigations, how to interview witnesses, and how to gather evidence.

The third part of the episode reviews how to conclude an investigation including how to tell whether a witness is reliable and other factors that should be considered in making a determination.

For more information on this topic you can read my posts on workplace investigations (https://texaslaborlawblog.com/how-to-conduct-effective-workplace-investigations/ and https://texaslaborlawblog.com/remote-investigations-in-the-workplace/), which cover much of the content that was discussed in this episode.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Remote Investigations in the Workplace

Published by Brett Holubeck on October 2, 2020

Image of a person on a computer looking at a forest to emphasize that remote investigations can take place anywhere. — Photo by Steve Halama on Unsplash

Around 42% of workers are working remotely during the pandemic.

This has shifted employment problems from the office to the home and is causing companies to carefully review how they are managing remote workers. Unfortunately, many workers aren’t following company policy and must be disciplined. Before disciplining these employees, companies need to conduct an investigation. Remote investigations are considered different from a typical in-person workplace investigation (guidance on those can be found here).

Setting up for the Remote Investigation

As with any investigation, the most important part is setting the framework to get the right evidence and collect all of the necessary information. In the work-from-home environment and use your own device workplace, there are a number of special considerations.

A business should check to see if employees signed an acknowledgement (ideally this would be in the handbook, but this may have been a new addendum given the impact of Covid) that the company has the right to save information and data from company programs, devices, and software. If your employee is using a company provided device, then all the data should be backed up remotely so that it is not lost should the employee attempt to delete it. This allows you to access data for the purposes of an investigation and for general company knowledge. Employees that are using their own devices may be required to install software on their computer/phone to create data that the company can access and monitor without affecting the personal use of the device. Essentially, companies that require or permit employees to use their own devices, such as laptops and phones, should ensure that those devices are set up to contain and share work data through whatever channels the company chooses to use. Some companies may have a remote desktop or other portal that shares information, while others may require individuals to log in to online programs where documents and other information can be kept. Companies must make sure that the data that will become the cornerstone of an investigation for a remote worker is not lost.

Checking what Misconduct Took Place

Before a workplace investigation there is always an incident, complaint, or a supervisor/member of management that has questions concerning employee conduct. The misconduct for remote workers is not the same as for workers that are working in person with each other in close contact. Issues concerning remote workers may be harder to determine. Among the differing issues of misconduct for these workers are workers that are sending inappropriate messages over text or other channels, not completing work in a timely manner, taking confidential information/trade secrets, visiting inappropriate sites on company computers, and that’s just to name a few.

There are a number of issues that are important to consider when conducting a remote investigation. These principles apply both when the investigation is being conducted for workers that all work at the same site and the investigator is remote, or when all parties are remote.

Gathering Evidence

As with any investigation, the evidence is incredibly important. The evidence needed will depend dramatically on what company rule was violated. There are a number of questions that can be considered to help determine the best approach to gathering the evidence.

What rules were violated?
What means were used to violate the rules (computer programs, Slack channels, email, or other sources)?
Who else witnessed the event? Who had access to the materials?
Is the data saved somewhere that it will be preserved?
Are there any witness statements about the event? Any formal complaints concerning the event?
Is there any other information that will be useful?

Setting up Your Technology

Before getting into the heart of the important parts of the investigative process, investigators need to make sure that they have the right tech to conduct the investigation. Many companies will conduct investigations over the phone, which is ok but is not the most effective method.

As with everything else today, people are moving their investigations to Zoom, Microsoft Teams and other video conferencing services. To conduct an effective investigation through these services, companies must remember a few points.

● Use a dedicated room or channel that is private and only for this investigation.

● Make sure that you practice the technology to ensure that it will work properly on the day of the investigation

● Work with the various people you will interview to ensure that they have installed the software properly, are set up to use the software (have login information), know how to use the technology, are using the technology in a quiet place, and the other basics of conducting the investigation remotely.

● If employees do not have computers or are working onsite, then make sure that someone at the facility has set up the computer and will be present to help you manage the interview. They should not be in the room but need to be around in case of technology issues.

● If any documents or video will be shared through the software, then you should make sure to practice sharing this information.

● Remind the person being questioned to look at the camera (wherever that is on the device) so that you can get the best view of them to judge body language and whether they are being truthful.

● Make sure that the employee is not wearing a mask or other face covering so that you can view their expressions.

Ensuring Proper Interview Setup

During the interview, investigators should have another manager or member of HR with them to take notes so that the investigator can be focused on the conversation and their questions. The investigator should also ensure that the person that they are interviewing is alone and there is no one else in the room with them, which can be accomplished by asking them to use their camera to scan the room. If it is a unionized workplace, then the company must allow the employee their Weingarten Rights; the employee may have a union representative with them.

Interviews should be conducted as soon after the incident as possible to prevent the remote worker from deleting evidence or developing a reason that their behavior did not violate company policy. Obviously, companies still need to do some investigative work (see the above section on gathering evidence) before they are able to interview employees including reading witness statements, emails, text messages, slack channels, reviewing information from computers, and any other documentary evidence.

Evaluating Your Witnesses

The EEOC has some great information on how to determine whether a witness is reliable:

● Inherent plausibility: Is the testimony believable on its face? Does it make sense?
● Demeanor: Did the person seem to be telling the truth or lying?
● Motive to falsify: Did the person have a reason to lie?
● Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
● Past record: Did the alleged harasser have a history of similar behavior in the past?

Many of these factors remain the same when an investigation is remote. Inherent plausibility, motive to falsify, and past record are practically unchanged whether the employee is working remotely or if the investigator is remote.

However, determining an employee’s demeanor can be tricky during a remote investigation. The employee needs to make sure that they are looking at the camera so that the investigator can view their expressions carefully. The camera should be angled so that their face is captured and is not cut off. The investigator should encourage them to center themselves on the screen so that they do not go off the screen during the interview.

Corroboration is also something that changes in a remote investigation. It may be the case that the workers were remote, and you need to gather evidence regarding their behavior. In a remote working environment people are often alone. In an office environment, there may be additional witnesses to an event. Investigators need to carefully consider what information is available in the remote working environment and may need to involve IT to gather the evidence that is needed for the interview and the investigation.

Conclusion

Workplaces will need to continue to conduct remote investigations even after the pandemic ends. The future of work is changing dramatically. After COVID-19, it is likely that there will be more remote workers. By acting now and reviewing how to conduct a remote investigation, investigators will be better prepared to continue conducting these types of investigations in the future.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

How to Conduct Effective Workplace Investigations

Published by Brett Holubeck on April 20, 2019

Magnifying glass on a computer to symbolize that many workplace investigations occur online or in electronic files — Photo by Agence Olloweb on Unsplash

One of an employer’s worst nightmares is having a workplace incident. And the worst workplace incidents are the ones where the employer has no idea what to do. Fortunately, there are some things that employers can do to avoid this situation. Workplace investigations can be broken down into 3 different parts: 1) preparing for a problem before it occurs; 2) conducting the investigation; and 3) making a decision and following through.

Preparation is Key:

Many incidents at work could have been prevented with better preparation and communication with employees, and a problem that is prevented is one less headache for you as an employer.

You Need to Communicate Expectations with Your Employees

It is imperative that employees know the rules that they are required to follow. An employee that does not know the rules is going to feel like they are being unfairly treated when they are eventually disciplined for a rule that they did not know or when they feel that a rule was inconsistently enforced. It is a bit like this scene from Office Space when Joanna’s boss counsels her about how much “flair” she is wearing at her job at the restaurant. In her case, the rules said one thing (you need 15 pieces of flair), but she was counseled for only doing the minimum (there was an unwritten rule).

You Need to Keep Good Records

In the event that a problem arises, even with adequate communication and training, you need to document the various problems that arise with an employee so that you can take appropriate actions against an employee. When you conduct workplace investigations, it matters whether an individual has committed a similar offense prior to the one that they are being investigated for- and documentation is key. It matters for determining what punishment the employee should receive and for determining whether they committed the offense, the frequency of offenses, and types of offenses committed. Every single instance of an employee not obeying the rules must be documented.

You Need to Train Your Supervisors

Supervisors need to know how to enforce the rules of the workplace. They cannot merely have a familiarity with the rules. They need to know how to address a variety of scenarios in the workplace from sexual harassment, workplace performance problems, and any other major, common issues that the worker may face meaning they need to know what exact steps to take in the event something occurs. In the event supervisors are not certain of their steps, they should know who to contact (e.g. their supervisor or company legal counsel) to prevent any missteps for the company.

You’ve Got a Problem- Now what?

Unfortunately, not all problems will be prevented even with adequate preparation. Some of these incidents (like absences, showing up late, failing to complete paperwork) are routine and will not require a workplace investigation. However, problems that are fact specific and require a tailored response will. These sorts of incidents are the ones that keep HR up at night. Let’s start at the beginning. Something’s happened. You have a problem. What should you do?

Respond in a Timely Manner

Once you hear of an incident, it is your responsibility to take steps to mitigate the situation in a timely manner. Employee safety is an imminent concern- if safety is in question, you have to deescalate the situation ASAP. For example, if two employees engage in a verbal altercation then you may need to suspend an employee while you conduct the workplace investigation. The same thing may be true if there is a workplace accident that you need to investigate. You also need to consider who all needs to be involved in conducting an investigation. Some investigations can be conducted with inside counsel/HR, but outside counsel is preferred when litigation is likely. If it is the CEO or owner, then you may also need outside counsel that you do not normally use. Any investigator should be independent to avoid any semblance of bias or undue influence/interference with the investigation.

Gather Information

The next step is to interview the various people that may have relevant information about the incident.

The first person to interview is the complainant. There are a number of questions that you will need to ask the complainant. The goal of this interview is to gather as much information as possible. You want to know who committed the action against them, where did it take place (Was it in more than one location? Away from work? Online?), when it did it take place (Was it more than 1 time?), how did it take place (What was the context?), and what exactly happened. You want to know whether there are any other people that may have other information about the incident, did anyone else complain about the conduct that he or she is accusing another employee of, and whether there are any notes or other documents that they have that may be relevant (This may be past accusations, discipline notices, and other documents in the employee’s folder) .

The next person to interview is the person that the complainant is making accusations against (the offending employee). You will let them know what they are being questioned about and ask what their response is to the allegations. If an employee admits that they committed the conduct, then you will ask questions around the behavior to determine any appropriate punishment or reason that shows that they did not violate company policy. If the employee says that the allegations against them are false, then you will ask why the complainant may lie or be incorrect. You will also ask if they have any other relevant information, if there is anyone else that may have relevant information, and if they have any documents, text messages, or other physical evidence about the incident.

Finally, you will ask any additional witnesses about the information that they may have about the allegations. You will ask the witnesses what they may have seen or heard about the incident and when the incident(s) may have occurred. You may ask what the complainant, other witnesses, or the offending employee told them about the incident and when they gave them this information. You will also ask whether they have any relevant information or know anyone that may have relevant information.

Wrapping up the Investigation

After you have interviewed all the witnesses, the next step is assessing the credibility of your witnesses and any evidence and taking action.

The EEOC has some great information on how to determine whether a witness is reliable:

Inherent plausibility: Is the testimony believable on its face? Does it make sense?
Demeanor: Did the person seem to be telling the truth or lying?
Motive to falsify: Did the person have a reason to lie?
Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
Past record: Did the alleged harasser have a history of similar behavior in the past?

After each witness interview you need to determine whether a witness is believable/credible. Can you believe what they are telling you? Is it physically or otherwise impossible for what they said to have occurred? You also need to consider whether the employee’s demeanor makes it seem like they are telling the truth. Were they able to look in your eyes or were they being shifty in their answers or not being direct in answering the question that you asked? You also want to determine whether an employee has a reason to lie. An employee may have been recently disciplined by a supervisor or given a last chance warning that they would be fired for another performance issue. Some employees may retaliate against a supervisor or competitor in the workplace. Essentially, you have to examine all the factors that could determine whether or not a witness is telling the truth.

After interviewing the witnesses, you will assess the evidence as a whole to determine whether the individual(s) violated company policy. This is a fact specific determination that requires examining your company policy and the evidence to determine whether the employee committed a violation.

Determine the Appropriate Action

Once you have made a determination based on the evidence, then you need to decide how you respond to the employee’s offense or conduct. You need to consider whether you will absolve an employee and determine that they did not violate company policy or if you will discipline or terminate the employee. It is important to review whether there are any circumstances that indicate that the punishment should be reduced. Finally, you should document any actions that you take and follow-up with the employee that made the accusations to ensure that the problem is not recurring.

Conclusion

Workplace investigations are an important part of any business. By taking these simple steps you can conduct better investigations and follow-up on any issues that arise so that you can prevent similar problems in the future.

The information provided is my own and does not reflect the opinion of my firm or anyone else.