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Leading Examinations IN THE Work environment

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  1. CONDUCTING INVESTIGATIONS IN THE WORKPLACE Presented by: Carol C. Lumpkin, Esq. Judd J. Goldberg, Esq. April 28, 2005 GMSHRM – Legal Update Miami, Florida

  2. STEPS OF AN INVESTIGATION • The Complaint • The Planning Process • Collecting Possible Evidence • Interviews • Closing Loose Ends • Document, Document, Document • Corrective Measures

  3. THE COMPLAINT • Obtain as much detailed information as possible from the person bringing you the complaint • Listen without making any judgments • Place yourself in the complainant’s situation • Anonymous Complaints

  4. THE COMPLAINT • Advise the complainant of the next steps you plan to take • Address confidentiality, non-retaliation, and current job issues • Don’t make promises you can’t keep • Time line to complete investigation

  5. STEPS IN PLANNING THEN … Identify the issues Select the Tools of the Investigation Interviews The Specific Allegations Documents Laws and Policies Electronic Information

  6. Violation of Internal Policies Violation of State and Federal Laws Public Relations – The appearance of impropriety ISSUES

  7. TOOLS OF THE INVESTIGATION Company Policies Document Review Electronic Data – Voicemail, E-mail, Intranet, Internet Interviews

  8. DOCUMENTS • Personnel Files • Files kept by Managers • Medical files? (only if relevant to the investigation) • Expense files • Documents held by the claimant and/or witnesses

  9. ELECTRONIC DATA & COMMUNICATIONS • Computer disks • External hard drives • E-mails – Retention Policies • Voicemails • Cameras, Phones and PDA’s • Internet searches



  12. TIMING IS EVERYTHING Timeliness v. Thoroughness Control the Interview Keep Managers in the loop – respect business realities

  13. THE INTERVIEW … Continued • Language Issues – Do you need a translator? • No one is held or interviewed against their will • Identify relevant company policies

  14. THE INTERVIEW … Continued • No fishbowl conference rooms • Off premises ? • Workplace violence possibility – plan for it • Information regarding company resources at your disposal • Fair Credit Reporting Act • Confidentiality – only those who need to know • Retaliation – advise of policy

  15. “Mind If I Tape?” Florida is a double consent state Advisability of recording

  16. “I Don’t Remember” • “Let me tell you what we have learned so far” • “Is there anything else that you would like to add?” • “Who else do you believe we should speak to?” • “Here is my number. Call me if you think of anything else after our meeting” • “Do you have any questions for us?”

  17. “I Take It Back – Never Mind!” Can we stop the investigation? Once company is on notice, it must complete the investigation Others could be affected by conduct at issue

  18. “I want my lawyer!”

  19. ATTORNEYS • No “right to counsel” in a non-union setting • Dealing with represented persons • When should you call your lawyer

  20. INTERVIEWING THE ACCUSED • Information gathering • “Fair opportunity to respond” – required in some states • The identity of the complainant – do you reveal it?

  21. THE TABLES ARE TURNEDThe Interviewer Becomes the Accused 1. Maintain your composure 2. Focus on your questions 3. Give the accuser options that take you off the hot seat 4. Document 5. Don’t be defensive: nobody is perfect

  22. LOOSE ENDS • New facts • Reluctant witnesses • Unanswered questions • Scheduling issues

  23. DECISIONS & DOCUMENTATION Make determinations as to each allegation Document your reasoning

  24. TRUTH-TELLER or NOT ? • Consistency – Does the story keep changing? • Corroboration – What did others say? • Recollection of details • Memory – Bad or Good • Possible Bias

  25. DOCUMENTATION • Address all issues raised by complaint • Support your conclusions • Avoid editorials and marginalia • Avoid legal conclusions • Write so that it can be understood by others years later • Assume your notes will become public

  26. CORRECTIVE ACTIONS • Recommend effective, practical discipline • Consistency – treat similarly-situated alike

  27. CORRECTIVE ACTIONS • The complainant doesn’t get to decide, but should be advised of conclusions reached by the investigation • A slap on the wrist may cause larger future problems • Document and keep investigation materials in a separate folder • Public Relations

  28. Questions & Answers THANK YOU Presented by: Carol C. Lumpkin, Esq. Judd J. Goldberg, Esq. April 28, 2005 GMSHRM – Legal Update Miami, Florida