1st edition The Essential Guide to Workplace Investigations by Lisa Guerin FIRST EDITION SEPTEMBER 2007 Editor LISA GUERIN Cover & Book Design SUSAN PUTNEY Proofreading SUSAN CARLSON GREENE Index THÉRÈSE SHERE CDROM Preparation ELLEN BITTER Printing CONSOLIDATED PRINTERS, INC. Guerin, Lisa, 1964 e essential guide to workplace investigations / by Lisa Guerin. p. cm. ISBN-13: 978-1-4133-0691-0 (pbk.) ISBN-10: 1-4133-0691-8 (pbk.) 1. Employee crimes Handbooks, manuals, etc. 2. Labor discipline Handbooks, manuals, etc. 3. Violence in the workplace Investigation Handbooks, manuals, etc. 4. Discrimination in employment Investigation Handbooks, manuals, etc. 5. Sexual harassment Investigation Handbooks, manuals, etc. 6. Investigations Handbooks, manuals, etc. I. Title. HF5549.5.E43G836 2007 658.3'14 dc22 2007013047 Copyright © 2007 by Nolo ALL RIGHTS RESERVED. PRINTED IN THE USA. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without prior written permission. Reproduction prohibitions do not apply to the forms contained in this product when reproduced for personal use. Quantity sales: For information on bulk purchases or corporate premium sales, please contact the Special Sales Department. For academic sales or textbook adoptions, ask for Academic Sales. Call 800-955-4775 or write to Nolo, 950 Parker Street, Berkeley, CA 94710. Acknowledgments Many thanks to: Amy DelPo, for her encouragement and suggestions. Rich Stim, for his excellent editing and his sharp eye for the noir detail. Laura Lawson, Dan Cafaro, and Allen Smith, of the Society for Human Resource Management, for their insightful comments on the manuscript and their assistance in making this project a reality. Jathan Janove, of Bullard Smith Jernstedt Wilson, for his helpful advice on the manuscript on behalf of SHRM. Kelly Perri and Sigrid Metson, for their tireless marketing efforts and their help in shaping the tone and structure of the book. Ella Hirst and Stan Jacobson, for their research assistance. Susan Putney, for her wonderful cover and book design. Susan Carlson Greene, for the meticulous proofreading. Dedication For my parents, whose five children gave them plenty to investigate. In loving memory. Table of Contents PART I: Investigation Basics 1 1 Workplace Investigations: An Overview 3 e Benefits of an Effective Investigation 5 Ten Steps to a Successful Investigation 8 Common Investigation Mistakes—and How to Avoid em 12 2 Getting Started 27 Discovering Workplace Problems 29 Decide Whether to Investigate 35 Take Immediate Action, If Necessary 38 Choose the Investigator 40 Plan the Investigation 50 3 Gather Information 55 Get Started Right Away 56 Conducting Interviews 57 Gathering Other Evidence 83 Follow-Up Interviews 88 4 Make and Document Your Decision 89 Evaluate the Evidence 90 Decide Whether Misconduct Occurred 96 Take Action 98 Document Your Decision 104 Follow Up 109 PART II: Investigating Common Workplace Problems 111 5 Investigating Discrimination 113 What Is Discrimination? 115 Ten Steps to an Effective Discrimination Investigation 133 6 Investigating Harassment 171 What Is Harassment? 173 Ten Steps to a Successful Harassment Investigation 186 7 Investigating Workplace eft 215 How Employees Steal 217 Ten Steps to a Successful eft Investigation 234 8 Investigating reats and Violence 267 reats and Violence in the Workplace 269 Ten Steps to a Successful Investigation of Violence 281 A Appendix A: Workplace Policies 315 Complaint Policy 316 Open-Door Policy 320 Antidiscrimination Policy 320 Antiharassment Policy 324 Antiviolence Policy 326 B Appendix B: Forms and Checklists 329 Complaint Reporting Form 331 Investigation Notice Form 333 Investigation Report Form 335 Adverse Action Notice Form 337 Checklist: Ten Steps to a Successful Investigation 339 Checklist: Avoiding Common Investigation Mistakes 341 Document Checklist 343 Credibility Checklist 345 Discipline Checklist 347 Investigation Report Checklist 349 C Appendix C: Sample Investigation Documents 351 Complaint Reporting Form 353 Interview with Bill Martinez 357 Interview with Louise Jay 361 Interview with Sharon Washington 365 Interview with Skip ompson 367 Interview with Brian Haggerty 373 Interview with Jocelyn Evans (Follow-Up) 377 Interview with Skip ompson (Follow-Up) 379 Investigation Report 381 Written Warning 387 Investigation File 389 D Appendix D: Resources 391 State Laws Prohibiting Discrimination in Employment 392 State Agencies at Enforce Laws Prohibiting Discrimination in Employment 407 Resources on HR and Employment Available From Nolo 410 Resources on HR and Employment Available From SHRM 412 E Appendix E: How to Use the CD-ROM 417 Option 1: Accessing Investigation Resources from the CD 419 Option 2: Installing and Accessing Investigation Resources on Your Computer 420 Files Included on is CD-ROM 421 Index 423 I part Investigation Basics 1 CHaptEr Workplace Investigations: An Overview e Benefits of an Effective Investigation 5 Ten Steps to a Successful Investigation 8 Common Investigation Mistakes—and How to Avoid em 12 Failing to Investigate 13 Delay 15 Inconsistency 16 Retaliation 18 Failing to Be orough 19 Compromising Confidentiality 20 Losing Objectivity 22 Strong-Arm Interview Tactics 23 Invading Employee Privacy 24 Using Polygraphs Improperly 26 4 | THE ESSENTIAL GUIDE TO WORKPLACE INVESTIGATIONS C hances are good that you picked up this book because you’ve become aware of a potentially serious problem at your company and you’re not quite sure how to handle it. Maybe you’ve heard a complaint or report of misconduct that sounds something like this: “Every time I go into John’s office, he’s looking at porn on the Internet—it’s really starting to offend me and some of the other women in the office.” “ We’ve finished our internal audit, and the numbers just don’t add up. I think we may have a thief on our payroll.” “I’ve been passed over for promotion three times, and each time the job has gone to a younger person who doesn’t have my experience or training. I feel like I’m being discriminated against.” “Mark has been really angry lately—he keeps talking about his gun collection, and yesterday he told me that ‘management is about to get what’s coming to them.’ I’m afraid of what he might do. ” Now you’re facing some tough decisions: Whom should you believe? What really happened and why? How serious is this problem? What should you do about it? And, can you handle this without creating legal problems for the company? A complete, impartial, and timely investigation will help you answer these questions and figure out what to do. In fact, a proper investigation is one of the most important tools for maintaining a safe and productive workplace—and keeping your company out of legal trouble. is book gives you the tools and information you need to conduct a successful investigation. Part I (Chapters 1 through 4) describes in detail the ten steps to a successful investigation of any kind of workplace problem. Part II (Chapters 5 through 8) takes a closer look at four common workplace problems—discrimination, harassment, theft, and violence—and explains how to handle the special investigation challenges posed by each. CHaptEr 1 | WORKPLACE INVESTIGATIONS: AN OVERVIEW | 5 is chapter will help you get started. It introduces the benefits and basic components of a proper workplace investigation, including the actions you will have to take—and decisions you will have to make— along the way. (Each of these steps is covered in detail in Chapters 2 through 4.) It also covers some common investigation mistakes that can lead to legal trouble—and tips that will help you avoid them. Investigations Require Judgment Calls Although most investigations will require you to at least consider each of these ten steps, every situation is a little bit different. Workplace problems rarely land on your desk in a tidy package with an obvious solution. Instead, you’ll often be faced with conflicting stories, documents that are open to different interpretations, and no clear answers about what happened and what you should do about it. You’ll have to decide which problems merit a closer look, whom to interview, and what documents to review—and when your investigation is complete, you’ll have to decide what you think really happened. All of these decisions are judgment calls, and no book can tell you how to handle every possible scenario you might face. However, if you follow the guidelines in the chapters that follow, keep an open mind, and use your best judgment, you should be able to handle most of the issues that come up. e Benefits of an Effective Investigation Although you might not be happy to learn that you have a workplace problem, investigating and resolving it in the right way can strengthen and protect your company. Among its many benefits, a proper investigation will help you: [...]... further contact with Kristen 16 | the essential guide to workplace investigations Kristen filed a lawsuit against the grocery store for sexual harassment The employer tried to have her case thrown out, arguing that it stopped the harassment by transferring the alleged harasser However, the court found that the store’s two-month delay before taking action was too long, even if it eventually did the. .. chance to tell his side of the story • Szczesny met again with important witnesses, including Silva, to give them a chance to hear new information and to clarify or correct their own statements • Szczesny memorialized the investigation in a written report, detailing the conclusions he reached and why 12 | the essential guide to workplace investigations Common Investigation Mistakes— and How to Avoid Them... it reserves the right to search desks, lockers, and email If your company has a written policy warning 26 | the essential guide to workplace investigations that it might search, employees will have a tough time arguing that they reasonably expected those areas to be private Using Polygraphs Improperly You might believe that the easiest way to get to the bottom of a workplace problem is to require everyone...6 | the essential guide to workplace investigations • Figure out what happened The immediate aim of any investigation is to get to the bottom of a problem You won’t know how to handle a situation until you know what really happened And, acting before you have all the facts could lead you to discipline the wrong employee or allow a workplace problem to continue • Deal with employee... racist cartoons and jokes anonymously, using the office email system The company has a written policy permitting email monitoring The investigator reads the email messages and asks for the tech department’s help in figuring out where they originated The employee who sent the offensive messages would have a hard time arguing that the company shouldn’t have read the messages or traced them back to their... based on the race of either employee, it will have trouble defending its inconsistency in court Because the employees committed similar offenses, the best course of action is to impose similar discipline The company can take other steps—like requiring sexual harassment training for the entire workforce— to show employees that harassment won’t be tolerated 18 | the essential guide to workplace investigations. .. to their sender Monitoring phone calls is another story An employer is legally allowed to monitor employee conversations with customers or clients for quality control (although some state laws require the employer to inform the parties to the call—either by announcement or by signal—that someone is listening in) However, different rules apply to personal calls Once the person monitoring realizes that... ships—they can also torpedo a workplace investigation From a practical standpoint, talking too much during the investigation—telling a witness what another witness said, revealing your personal opinion to one of the employees involved, or publicizing the complaint in the workplace, for example—can lead others to doubt your objectivity They might believe you have already made up your mind and therefore... narrow exceptions to have the legal right to test (One of the exceptions applies to theft investigations; see Chapter 7 for more information.) And even then, the employer has to meet a long list of technical requirements before it can use the results of the test to make a disciplinary decision about an employee For example, the employee must receive a variety of written notices, must receive the test questions... how to sift through the evidence and come to a conclusion—and what to do if, despite your efforts, you can’t get to the bottom of things 8 Take action If you conclude that an employee committed serious misconduct, you’ll have to act quickly to avoid legal liability for that employee’s behavior and to protect other employees from harm Chapter 4 explains how to decide which actions to take after the . on the information available to it at the time, it was not liable for firing Ralph based on the investigation’s results. 8 | THE ESSENTIAL GUIDE TO WORKPLACE INVESTIGATIONS Your Role in the. If you fire the employee for reasons other than those stated in the contract, the employee can sue your company for breaching the contract. 14 | THE ESSENTIAL GUIDE TO WORKPLACE INVESTIGATIONS Failing. tried to elicit facts, not opinions. He encouraged the witnesses to contact him if they wanted to talk to him again. • SzczesnytoldSilvaof the chargesagainsthimandgavehimachance to tellhis side