Workplace Investigations: A Guide for HR Professionals

[00:00:01]foreign the talk show that spotlights HR professionals and talks about all things HR workplace internal investigations have taken center stage in today's climate oftentimes HR plays a significant role in the investigation process shr professionals are Business Leaders you should be well versed on the topic know the mechanics of how workplace internal investigations work and know what your obligation is with regard to them to help me discuss what you should know is attorney Jeff Weintraub senior counsel Fisher and Phillips LLP thank you for coming on the show thank you Dr list for having me once again right once again I think he's becoming the resident attorney for this talk show hmm a two-timer a two-timer wait that didn't sound right no no worries but I'm so glad that you're here so last time we not only found out that you were a legendary attorney and a musician with a band but this time you're also a skier is that right yeah we just came back uh yesterday afternoon in fact from a ski trip to Snowmass in Colorado where we got snowed in and all flights were canceled and it was a crazy mess but yeah we had a great time there okay and I do have a picture from my ski trip primarily uh the drinks and food that we had during the trip well I'm sure that was loads of loads of fun so let's Dive Right In so Jeff why investigate workplace internal investigations why why should we investigate those well gosh that's a almost a philosophical question I I guess the first and main reason Dr Lester would be the simple fact that the statutes require us to investigate because the whole purpose of all these employment statutes when you really kind of get down and look at the legislative history is to go into the workplace even proactively and fair it out discrimination harassment retaliation and eliminated and you're not going to find out what it is until you investigate so that's primarily the reason I would say probably the second reason is because um the the whole concept of in investigation has in the last I don't know 20 years become really your primary defense in many cases in an employment discrimination case if you're if you're a company um and I suppose the reason for that is because from what I've seen let's just take sexual harassment which is the one everyone talks about the most all right um having had hundreds of sexual harassment lawsuits cases charges and so forth um out of all those I've only seen five where nothing happened where the allegations were completely fabricated oh wow which tells me that when I'm faced with a sexual harassment situation that probably something happened something happened so we have to get down to the you got to get down to that but the bottom line is you know on a lot of discrimination lawsuits companies and supervisors can say hey I didn't do it did you discriminated on the basis of aged in you no I did not but you can't do that with sexual harassment okay because something probably did happen that supervisor probably did something not every case I don't want to get too cynical but something probably happened that means you can't defend these cases by the old standard of saying we didn't do it if you're the company okay all you can say is that when we got the complaint yes we investigated yes and we did we did proper medial relief if it was called for and and by doing that the investigation itself has become the company's defense to these charges and these harassment cases so that's really the second third reason if you're on a jury have you ever been on a jury doctor they never pick me because they don't want lawyers on their juries back there but juries expect companies yes to do a good faith thorough investigation and if the company doesn't do so they're going to be ticked at that company because they put themselves in the shoes of the plaintiff and they say hey would I want there to be an investigation by the company in good faith my claims if I had a claim and they would and they would yeah and so that's why we do it yeah those are the reasons so um it gives employers the opportunity to set a I guess course of action right that's what you want to show that you're showing a course of actions that you took initiative that you took action with regard to the complaint right if if the company knows it's got to do something it's got to take action you got to take action so you talked a little bit about the statutes and you talked about the statutes for employment law so what are some of the laws or which laws require that you do workplace investigations all of them all of them thank you yes um but if you don't investigate you're not going to know what happens and I've had lawsuits uh cases where my client has been sued for discrimination or harassment where when when I came to the case at the lawsuit stage they had never investigated initially oh my goodness that's like strike one strike two it's almost strike three because if you didn't investigate you you couldn't do anything to prevent the problem or to solve the problem afterwards without investigation okay so yeah everything from Title VII to OSHA and Tosha the America's Disabilities Act the age discrimination Employment Act the Family Medical Leave Act uh on and on and on and on the Tennessee poor performance protection statute which bars employers from firing employee just because you can't do the job whoa okay wait a second are you kidding there is no Tennessee I just wanted to see if y'all out there were listening hey and if HR professionals know what what some of the new developments are but hey you caused by surprise it made me stop wait a minute what is that but uh anyway so those are the things that are so important so important to know so let's talk about the um workplace internal investigation steps um what are the steps to a a good workplace investigation well I think you start um obviously you're going to start by meeting with the complainant and you're going to want to um you know advise the complainant that they're free to complain that there will be no retaliation against them for any complaint they might make and then you are going to commence your investigation if it's appropriate for the particular circumstance and we always say you know never never terminate anybody on the spot and you know there are times when you have to get someone who's angry and fighting you have to get them out of there but you just suspend them yes and then you it gives you a chance to do your investigation so you're going to plan out your investigation steps at the front end figure out what you're going to want to do first and second and so forth so you're going to want to uh you meet with that complaint and find out what all the issues and the facts are then you want to collect all the documents that might be relevant in the Personnel files and you're going to want to figure out who to talk to you know and complain it's going to give you a couple names you can talk to this person is a witness and that person is a witness always want to remember these Witnesses in these protected group discrimination and harassment cases the witnesses themselves are protected okay so you want to tell them also that they are free to um they actually don't have to participate even though you're paying them for their time I give you a little tip here that your your listeners might might be able to use okay remember the name Johnny's poultry okay for real all right Johnny's poultry is an Old National Day Relations Board case from 40 50 years ago okay that basically sets out the standards under the Labor Act investigation uh for when an employer who has all this Authority and power is questioning this employee who doesn't have any power therefore it's a one-sided deal so the board labor board say these employees need some protection so there's some steps you take in which you advise the employee look we'd like your cooperation uh you will not be retaliated against participating with this or not participating with us it's voluntary you don't have to agree to do this there will be no retaliation if you don't want to at any point in the process if you feel uncomfortable you can depart and again no retaliate just look up Johnny's poultry those that case has been unofficially followed or adopted by many employment agencies around the country so I think those are good standards to use with employees so you meet with the employee you're telling all this stuff and you get those names and then you meet with those Witnesses okay and somebody's going to ask you know do you tell them it's confidential yes that was a question I had for you what did they say you know what do you say I don't listen I don't want to participate I don't want to be a part of this what would be the response of the employer what the employer should say um if you don't want to participate uh that's understandable we're not going to force you to participate we would love to have your cooperation on this it's important but again if you choose not to then we'll end the session down and again no retaliation for not participating but what about this though if if a company has policies that state you know one of the expectations in an investigation is for you to participate if you should happen to be asked if that employee says I still don't want to be a part of it the employer cannot force that employee to do is that correct uh should not force the employee I mean you know employers are going to use little subtle pressure perhaps at the end of the day they can't force the employee to do it you have to remember the employee in protected group discrimination allegations and harassment allocations you know that's for the you know race sex um you know all the other age and so forth all of those are protected groups and when an employee participates in a protected group investigation the employee is protected okay um if an employee an employer may bump into a real problem if one of the name Witnesses is an employee who the employer was planning on terminating next week for absenteeism or whatever yeah that would be a problem and then they cooperate in the investigation a week later they get fired well that was actually the MacMillan leaves MacMillan case in out of Nashville I don't know 10 years ago or something yeah and uh the employer was liable because the court the jury felt that the employee had been terminated for basically for cooperating in the investigation so wow we have to be very careful about that stuff yeah so and that if I can go one step further yes that also goes with confidentiality because employers typically and this is something when I talk about this stuff y'all HR professionals don't like to hear me today we all we always say now keep this keep this interview confidential you know if we don't want to spread around or anything and according to the labor board okay in many cases requiring confidentiality violates the Labor Act and I'm talking about for non-union employers okay because under the Labor Act employees regardless of whether the company is unionized have the right to discuss the terms and conditions of employment and that includes that includes sexual harassment in the workplace so when you tell Adam what an employee witness do not talk about this according to the labor board that probably is a violation of the Labor Act it's called concerted activity so HR folks asked me what are you telling us I say well maybe tell them now please don't spread rumors yes you know would that work I have no idea yeah but it's something you could do I'm not sure it would get you out of trouble if an unfair Labor practice charge was filed at the board but it's better than saying now keep This Confidential just keep this confidential so HR professionals you know that it's something that had it's been a practice over the years but we have to be very careful about telling employees to keep these type of Investigations confidential so all right we're gonna do this I'm gonna give you some what if scenarios what ifs okay all right we're in the middle of an investigation all right so if the complaining employee quits or perhaps the accused supervisor quits should the HR professionals still move forward with the investigation absolutely you should you know before employment law came around in the old old days um defense company attorneys would tell the employer circle the wagons you know and if the employee quits then you can uncircle them because it's over yes well that ain't happening in our world obligation under Title VII and the other statutes is to Fair it out discrimination in the workplace harassment in the workplace and eliminated so if the complaining employee quits that goal of the statute the Congressional goal has not changed it's still find the discrimination and get rid of it get rid of it yeah and so you're still obligated to do that and if you stop you're going to be in trouble because that that person that left is probably left because they're ticked off and they're going to sue you and the first thing that plants attorney is going to ask when they depose the HR professional is you never completed your investigation of her allegations of harassment and discrimination against you [Music] I guess we didn't you know he's not going to ask you the second question why did you stop me it's gonna it's gonna be a technical reason the company stopped because she quit but the reality is the employer never followed the Congressional intent so complete your investigation make it thorough and in good faith look under every stone regardless of whether that individual has left the company or whether the accused perpetrating supervisor has left the company and you make a note that that person or complaining employee did quit in the investigation but you continued on right exactly right right so they're in these cases in these investigations there's always investigators right people that conduct the investigation you may have lead investigation investigators or you just may have a number of people right so broadly speaking what is the main role our goal of the investigator well the investigator has to collect all the facts of course and then continuing the process to try and find the source if there is discrimination unlawful discrimination based on protected groups then that investigator needs to find it and get rid of it and there's just you know in today's world we have highly trained HR professionals like yourself many others in insurance and other similar organizations but especially the insurance Memphis by the way a great organization great organization a little sales pitch of course we have to put it out there right because all these professionals are so well trained by Sherman and others um there's just no excuse for not continuing with a thorough investigation let me give you an example of what not to do okay okay this would be on your don't do this list don't do this list the employee complains about let's say sexual harassment and investigate the HR official who will probably be the investigator most likely um says okay I'll investigate well the investigation shows there was no discrimination or harassment in this particular case however when that employee later sues for sexual harassment she's going to point out well you know the HR uh professional at the company the HR Director borrowed my husband's lawnmower about a year ago and and when he returned it it had a big dent in it and you know they were they were angry they almost got in a fist fight well that HR professional should should realize that he or she had a built-in bias yeah now he may not have been biased but that's not the point it gives a future plaintiff's attorney something to say well the investigator had was potentially biased and therefore the whole investigation is Tainted and thrown out right so so they should the HR professional the professional thing to do would be just to remove yourself right yeah and get someone else and that's a problem Dr lescher because small companies don't have someone else right and it needs to be yeah so so what do you do if you don't have anyone else well um a bunch of Alternatives you can you can get an HR consultant okay you can call the Sherm chapter and they'll tell you some HR Consultants you have to pay their time but we got some really terrific ones here in town so you can get one of them I would not suggest just someone who's nominally in HR like in payroll but has never had training you know annual investigations yeah but there's some wonderful outside Consultants yeah some HR professionals would call their attorney and ask the attorney to investigate I do not agree with that I've had my clients call me and ask and I always try to say no you don't want your employment attorney to be your investigator I've done it once or twice when they insist but I always try to get an outside consultant why because here's what happens you know the best the best thing you get when you have an attorney on call and by the way every employer should have their employment attorney on speed dial on speed dial and if you don't have one here's who you call would that be okay too but but basically you're used to having talks as an HR probe with your employment attorney on anything and everything related to you know discrimination harassment it's a free form because you know that later attorneys and judges can't force you to divulge it what you talked about with your attorney in that conversation in most cases because it's privileged privilege so you get used to that and you explore ideas and you know it's free-flowing that's the whole purpose of the thing is to allow you know the clients and the attorney to talk about things that you wouldn't talk about necessarily otherwise options strategies and so forth um you get used to that and here now you've hired your employment or asked your employment attorney to investigate and you bring that that attorney in and you're freely talking about the investigation and the results of this and that all this stuff that you need to talk about strategically but that you wouldn't really want to ever testify about you're thinking well this is privilege yes they can't make me testify but you remember the first thing I said today in response to your question the defense to these cases by the companies really is no longer we didn't do it right in certain cases like sexual harassment the defense is the investigation patient yes so Frontline defense exactly so if you've got the attorney doing the investigation then to use this as your defense you're going to need to waive the attorney-client privilege and have him testified oh wow and that opens the door to all this stuff that you've been making strategic options and that you really don't want you you don't want to waive the attorney that's why I think don't use your employment attorney as the investigator you know get them to advise or consult try to retain the privilege I don't know if that makes sense or if that oh no that makes that makes perfect sense and HR professionals this is a very good tip for them because that is the first line of um of uh contacting someone well let me call the attorney would it be too problematical if I asked your viewers to everyone who thought it was a good tip to send in like two dollars to me well I did just to love her yes pass the basket right pass the basket but if you do not have an employment attorney uh if you're a smaller company and you don't have one Jeff why Fisher Phillips would be a fantastic one so just a couple more questions for you so you're another what if so you have rumors going around the workplace where where women are being mistreated race and gender is playing a part all those things can employers conduct a secret investigation when they just hear these things in the air in the atmosphere no one's come to report it but they've heard it well there ain't no such thing as a secret investigation there's no off the Record interviews with employers you know you can you can say as an HR professional or as an attorney now this is off the Record but well that's what the employee is going to testify to right under oath in court because you may feel like well sometimes we need to go private or we need to go off the Record first the statutes don't accommodate something like that right that's the purpose of laws like Title VII is not to keep things hidden in the closet that's right you should bring it out into the public life to make sure to try and prevent employers from engaging in improper activity in the future the threat of going public you know it really helps all of us to not do whatever the bad thing is right so right no there's no there's nothing off the Record in these cases and employers should just really get away from that idea just get away from the idea all together all together okay um what if an investigator early in the investigation feels that the employee victim is telling the truth about a proposed discrimination by the supervisor what what should happen What should the investigator do well um one thing you can do and and I had this situation many times and and I'm thinking now of a case I had in Texas uh 18 or 20 years ago and I remember it was a Sunday and you know when you're an HR professional or an employment attorney there's no weekends off [Laughter] that's true it's telling the truth sometimes it's not sometimes it's not so the HR professional called me that particular Sunday afternoon and said hey we've got an employee female complaint employee complaining of sexual harassment against one of the top vice presidents of the company oh wow yeah and the HR professional said she's going to sue us because we're pretty sure this guy did this and by the way when we had the investigation he did it all everything you can think of oh really oppressed woman yeah so it was clear to me that whatever happened in the investigation she was going to file this huge National company she was going to file a multi-multi-multi-million dollar lawsuit so um I had to figure out a way to try and reduce the risk so what I came up with and this is something that I've tried to follow ever since is I said well you need to commence the investigation and he says okay we'll start it first thing Monday I said no you don't understand start today he said it's Sunday yeah I know yeah so we found it out yeah because the key in many of these cases is to do the right thing to try and find and figure out the Discrimination before the nasty threat letter from the plaintiff's attorney arrives and delivery yes because once you get that letter yes then everything you do after that is no longer the right thing you're doing it simply because you're scared again soon yes and that's what the jury's going to believe one day so I said what we got to do here is you guys have to do the right thing before that plants is there any letter arrives and I said I know it's going to arrive in the next couple of days absolutely so what they did they initiated the investigation rapidly they interviewed Witnesses on Sunday afternoon and on Monday morning they confronted uh the vice president on Tuesday and he chose to neither admit or deny but he resigned okay now the letter from the attorney arrived Wednesday the next day so here's what we did okay um I asked them the question on on Sunday I said these allegations of sexual harassment if they're true if they're true sound pretty severe and they said yes these are severe allegations like exposure and grabbing in a hotel room situation oh wow so if it's true it's bad and uh so I said what if you determine as a result of this investigation that all these allegations are basically materially true oh yeah and the HR professional and the president of the company said no question we would terminate so I said okay why don't you make that decision now and they said well what do you mean we can't decide that now we haven't investigated yet I said I know I'm not asking you to decide whether you're going to terminate the VP I'm asking you to decide that if you're going to terminate the VP if the allegations are materially true yes they should ah so they that Sunday they discussed it among themselves and they decided and documented this dated it that day that if with a big capital I and a big Capital left if the allegations against the VP are materially true then we're just fighting now that he will be terminated yes and so a couple of days later it was determined the allegations were true because the VP didn't deny anything it was to resign in a letter from the attorney arrives the next day and then he and I go into negotiations to try and resolve this potential lawsuit which he was going to sue for millions of dollars we met three times in the DFW airport in some little conference room and we settled the case for ten thousand dollars wow this was you know far below what the company was expecting to have to pay after we settled it the plaintiff's attorney told me um that Jeff said I was going for a lot of money in this case we settled it cheap for one reason only because you guys had already made the decision to fire this guy if the allegations were true I figured that eliminated punitive damages from my potential losses absolutely side note the resigned VP the bad guy was sued individually in Texas by the same attorney and I don't know what happened I didn't represent them but I understand they won millions of dollars like in the eight figure range wow company got out for ten thousand bucks wow are they are there any new developments or legislation with regard to workplace investigations um not so much any new legislation there's a lot of new legislation on the related you know topics that get investigated but I think what we're finding is that there will be more need for investigations in the future because there's more causes of action there's lots of new legislation there are you know with the new pregnancy pregnant workers Fairness Act okay just came out um that's gonna that makes uh discrimination on the basis of pregnancy okay illegal and actionable so there's going to have to be more investigations as to that topic all right and go down the list there's just the use of uh AI by employers artificial intelligence HR is using a lot of hi yeah and they're using that now investigations which is you know kind of amazing but I'm a little nervous about the whole AI thing do we really want you know robots yeah uh deciding I don't think that's the goal of AI I think it's just another Aid that HR professionals can use not the only thing but a thing or a method I guess you could look at um this isn't really new legislation for uh investigations but you'll remember I don't know four or five years ago that Congress decided and passed a law that in non-disclosure agreements would be barred not barred non-disclosure agreements were going to be disfavored in settlements of sexual harassment cases so they removed the tax deductibility okay of any any damages paid any attorney fees and so forth but recently another law was passed which bars or prohibits employers from having pre-dispute releases in settlement of releases of sexual harassment claims and you know this whole thing about uh the employers and individuals being you know outed on social media because they tried to keep someone from talking about it that they had sexually harassed and that that's horrible anyway you know that someone would try to bribe a female employee into not talking about what the what the bomb did yeah yeah so Congress did this so it prevents pre-dispute settlement requirements like if an employee goes to work at Acme steel opening up that name and the employer says well you can work here if you agree in this employment agreement that um you will keep confidential any accusations you know you might make of sexual harassment against the company well that's before there's any dispute okay that would be barred under this law what's not barred is after an investigation a settlement that has confidentiality requirements in it uh that would not be prohibited under this law just pre-disputes okay okay so the only problem for an employer with the uh with the post dispute sentence is the tax deductibility is lost for the monies that were paid in the settlement wow you have learned a lot today on let's talk HR with Dr Deneen I tell you um so would you say Jeff that what you should know about workplace investigations we've covered almost all of it which you should know there literally is nothing else we covered it I'm sure of it we were going to cover all of it and now in our HR go-getter for February 2023.

[00:33:41]she is Linda grafenry the organization that she works for is the Salvation Army Kroc Center she's an HR coordinator been there for five years I asked her the question why do you love this profession she stated I love the day-to-day duties of being an HR professional HR is always changing in an effort to make things better I love that I get to help others make a positive impact and continuously learn about HR and she said the special note I'd like to thank Dr Deneen Lester for everything that she has and will teach me as we continue in the HR career that's Linda grafen read HR go-getter February 2023 wow if you didn't know the details about workplace internal investigations now you know what you should know how to conduct them and what are the new developments with regard to the topic you cannot lose as an HR professional or business leader to be well informed and knowledgeable about the steps processes and outcomes of workplace internal investigations hopefully this episode help you to put those things into perspective be sure to watch the next episode or new episodes of let's talk HR with Dr Deneen the first of every month on the YouTube channel of the same name please note you can watch let's talk HR with Dr Dineen and prior episodes at any time go to the YouTube channel and type in the talk show title be sure to subscribe and click on the notification Bell this is HR TV I'm Dr Janine and I want to HR with you HR forever see you next time [Music]