July 18, 2018

EMPLOYEE RIGHTS AND PRIVACY

The goal of every workplace investigation is to fully investigate every allegation, founded or unfounded, and to do so without disclosing more specific information about the matter being investigated than necessary, other than to those few who have a legitimate need to know.

Retaliation

During the course of every workplace investigation, Employers at some point are faced with the following question: How do we prevent the claimant or reporting Employee and other witnesses participating in the investigation from experiencing retaliation by fellow employees?

First and foremost, Employers need to maintain the confidentiality of their investigation to both protect impartiality and to provide validity to the final results and decisions made following the conclusion of the investigation. However, confidentiality only goes so far to reassure the claimant and witnesses that their participation in any given workplace investigation will be protected and that participation is in their best interest. As such, a workplace investigation is only as good as the efforts made by the Employer to prevent retaliation against all those involved in the investigation. Not to mention that defense of retaliation claims can be expensive. Employers should make it clear to all witnesses, claimants, investigators, and any other person involved in any stage of the investigation that absolutely no retaliation will be tolerated. Better yet, Employers should make that a known condition of employment from the outset. Employers should also make clear that any retaliation that does occur will subject the retaliator to discipline, up to and including termination. And this policy should be consistently enforced for all employees at all times. This policy should also be conveyed to the claimant and any witnesses as well as instructions on how to report any allegations of retaliation during the course of an investigation, or afterwards, including the specific name and number of the person to whom allegations of retaliation should be reported, along with a second name and number to provide a redundant reporting mechanism. Just like claims of discrimination, Employers should immediately and consistently investigate any allegations of retaliation as soon as reported and any appropriate disciplinary actions should be taken to insure the integrity of the investigation.

Employers should include in their handbooks a provision that no retaliation will be tolerated against any Employee who reports any claim of misconduct to the Employer. Employers should provide a copy of this policy to any and all parties subject to an investigation to remind them that retaliation will not be tolerated. And Employers need to make sure that someone in Human Resources is closing the loop to make sure that Employees who utilize the reporting mechanisms are protected (and feel like they are being protected) 1 month, 6 months, even one year after their allegations have been investigated and resolved.

In addition, Employer should speak with the direct supervisors of both the accused and the Complainant to make sure that they are prepared to handle any observed or reported retaliation. This means that supervisors should be trained adequately to identify behavior which may be perceived as retaliatory in nature. Examples of retaliatory behavior can include, but are not limited to:

-Shunning
-Posturing
-Verbal Abuse
-Written Abuse(Email, letters, notes.)
-Threatening Behavior
-Non-preferential treatment.
-Re-assignment of job duties
-Denial of Leave
-Interruption of Job Duties

In no instance should an Employee who in good-faith reports alleged conduct requiring the initiation of an investigation that is found to be without merit be disciplined. The Employer’s written policy should make it clear that no Employee reporting alleged conduct they believe to be in violation of Employer’s workplace policies will be subject to discipline for reporting an action. However, there are circumstances where an Employee will make a knowingly false report of misconduct in the hopes of adversely impacting the employment of a co-employee, or in an attempt to “save” his or her own job. If it is clear that the allegations are unfounded, and were not made in good faith, then discipline may be appropriate. In these circumstances, discipline may be warranted, but discretion must be used in determining whether an Employee made a knowingly false allegation after the results of the entire investigation have been reviewed. Employers would be wise to contact employment counsel prior to taking disciplinary action in such circumstances as the repercussions if wrong could be severe.

Privacy Concerns

Under Tennessee law, and with few exceptions, a person who is a party to a wire, oral, or electronic communication, or who has obtained the consent of at least one party to the conversation, may record a communication and divulge the contents of the recorded

conversation. See Tenn. Code Ann. § 39-13-601. Under the Tennessee statute, consent is not required for the recording of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See Tenn. Code Ann. § 40-6-303. As such, Employers who provide notice to their Employees that they have no right to an expectation of privacy in the use of any equipment or electronic services provided for use by their Employee’s are generally not prohibited from monitoring, accessing, or discovering the electronic communications that take place on that equipment. Notice may be provided to employees through an Employer’s handbook or through a disseminated policy.

Recording Conversations
In Tennessee, as long as one party to a conversation is a participant in that conversation, or if an individual has the consent of one of the parties to a conversation, he or she has the right to record that conversation. In addition, Employers should always ask Employees if they are recording any portion of an interview or conversation involving that Employee. While Employer has no obligation to advise Employee that a conversation is going to be recorded by the Employer, it is always important to answer truthfully if asked as the ramifications from lying to an Employee regarding recording of a conversation can render the taped conversation useless. As such, it is almost always better to advise Employee that Employer is planning on recording the interview as part of its investigation, which will preserve the record for future reference without a bias of surreptitious behavior attaching.

Interviews

Interviews of the Complainaint, Accused, and any witnesses should be done separately.

Employer should have two representatives present during all interviews, and preferably one representative should be male and one should be female. Both Employer Interviewers should take notes, and notes should be objective in nature related to the content, actions, and observations of the Interviewers during the interview. Subjective comments and notes don’t aid in the investigation as they interject personal bias into the fact-finding process and do more to cloud the issues than shed light on what actually took place. Keep in mind that Employees can be nervous in an interview setting, so subjective observations related to that environment are far less accurate than objective notes and observations related to what was said and what actions were observed. Examples of inappropriate subjective observations: “Employee appeared nervous while answering.” An objective notation which would provide a better description of what took place would be: “Employee was sweating. Employee was shaking. Employee shifted his eyes around the room when asked a direct question.”

Maintaining Privacy

Each interview should be documented by both Employer representatives present and should be identified as being confidential. All interview materials should be maintained in a file or cabinet with restricted access to preserve the integrity of the investigation until completed. It is important that the Complainant be advised of the results of the investigation and what steps are being taken by the Employer to prevent the same behavior from occurring again, if the allegations were with merit. However, the Complainant does not need to know every detail of the investigation, merely the ultimate findings and resolution of the complaint and investigation.

For each individual investigation initiated, Employer needs to identify which individuals have a need to know the information collected during that specific investigation and appropriate actions should be taken to prevent dissemination of that information to anyone else.

OTHER POTENTIAL PITFALLS

Not conducting a thorough investigation.
Not conducting a timely investigation.
Not “Closing the Loop” once an investigation has been completed.

Not disciplining an employee who is found to have engaged in prohibited conduct. Merely relying on the denial of the accused that the alleged behavior occurred. Only prosecuting allegations made by women, specifically where the underlying allegations are of sexual harassment or discrimination.

Failing to timely and thoroughly investigate a claim of prohibited behavior based upon the request of the accuser.
Failing to conduct training on the prohibited behavior following an allegation of such behavior occurring.
Failing to provide more than warnings to individuals demonstrating prohibited conduct.

Assuming that conduct provided by third-party vendors or contractors do not warrant an internal investigation.

Reassigning the accuser to a different position to separate the accused and the accuser. (If one employee has to be moved, an Employer is typically better served by moving the accused than by moving the accuser due to retaliation considerations.)
Not speaking to all witnesses.

Not preserving the confidentiality of an investigation.

CONFIDENTIALITY

One of the key components of any investigation is the trust that what an employee tells you will be kept in confidence. For an employee, whether complaining or speaking as a witness, that person still has to return to work, regardless of the outcome of the investigation.

For an employer, without the ability to speak with all witnesses, discuss allegations, and discover facts, the investigation has little validity. Clearly these are competing interests. How often does a supervisor hear,"...but I don't want you to say anything" from an employee.

Unfortunately, your supervisors don't have that option. Once they become aware of a potential violation of a company anti-discrimination policy, the clock starts ticking. Failing to bring such a report of potential misconduct to HR or his superiors puts the Company at risk. As such, supervisors must be trained to immediately report any allegations of discrimination, regardless of whether they personally believe those allegations to have merit. And as a result, supervisors must also be trained not to promise not to tell.

When employees think of speaking in confidence, they often understand this to mean being kept secret. However, when employers speak about keeping an investigation confidential, to effectively conduct the investigation, they can't keep it secret. As such, employers need to make sure they are very clear at every stage of the investigation to advise all potential complainants , witnesses, and defendants that confidential means only divulging the necessary information to those individuals who need to know to conduct a thorough investigation. It is always important to reaffirm this to the complainant and just what this means.

Employers need to establish at the outset of an investigation which management employees need to know. It is best to start with a small circle and widen it if needed. This controls information leakage and maintains a streamlined investigation allowing the same people to ask the same questions and see the responses from each witnesses, complainant, and defendant. An example of information an Employer could share with a complainant is that “Unless your supervisor is identified as a potential witness or is involved in the allegations, he has no need to know of the complaint, allegations, or individuals involved.” Employer may still advise the supervisor of the fact that an investigation is being conducted, and he or she would need to be made aware to look out for any potential retaliation against a complainant by others, but that limited information by itself does not necessarily require the supervisor to know any specifics of the complaint. Obviously, that is a judgment call based on a specific workforce, but each Employer should make that determination at the beginning of each investigation. For example, if an employer determines a supervisor does need to know some specifics to help prevent retaliation, it may also determine that the employee's line leader has no need to know of the complaint or allegations.

Next, each Employer needs to make sure that its employees understand what expectations of privacy they enjoy. Typically, an Employer's handbook should make it very clear that there is no expectation of privacy on any piece of company property, whether accessed for personal or professional use. As such, an employer is entitled to the information and records of use contained in any piece of equipment to which employee is provided authorized access.

(Obviously, there would be no expectation of privacy on any piece of equipment for which an employee had unauthorized access). At the outset of any investigation, employees should be reminded of Employer's policy related to no expectation of privacy and all password and user ids should be obtained/confirmed(especially from Complainant and Defendant).

While company equipment should provide no expectation of privacy, personal property does not provide the same access for employers to an employee’s personal information. However, there is nothing that prevents an employer from asking an employee for certain information as identified during an investigation if it is relevant to the facts and circumstances alleged in the Complaint. While an employer cannot and should not force an employee to produce this information, the failure of an employee to do so can be a finding of fact during the course of an investigation upon which an employer can rely. Under no circumstances should employer attempt to obtain the private information of an employee without authorization from the employee and a clearly defined scope of what information is being sought.

BLANKET CONFIDENTIALITY POLICIES

Until recently, the standard admonition to most employees involved in an internal investigation has been “Please do not discuss this investigation or anything we have spoken about here today with anyone else until the investigation has been completed.” However, recent developments at the NLRB have placed this traditional advice in limbo.

In Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB 93 (2012), the BLRB held that “maintaining or enforcing a rule that employees may not discuss with each other ongoing investigations of employee misconduct” constitutes an unreasonable restraint on employees’ rights under Section 7 of the National Labor Relations Act (NLRA).

Never mind that the administrative law judge found that the employees had not actually been “ordered” not to discuss the pending administration, but found the company had merely made a “suggestion” to the employee not to discuss it until the investigation was completed. Such a suggestion sounds reasonable considering the fact that the company was trying to conduct a thorough, complete, and impartial investigation and to protect the cross-contamination of witness testimony. (I.e. think about “The Rule” that trial attorneys invoke at the outset of any trial to protect the testimony to be provided by subsequent witnesses who should be able to hear the testimony of prior witnesses which may in fact change their own recollection or understanding of the facts and circumstances at issue.) However, the concern was that such a request for confidentiality in effect would prevent an employee from reporting the claim to management employee’s further up the chain of command, the EEOC, and other regulatory agencies that have a right and need to know of employee misconduct.

The NLRB disagreed with the administrative law judge’s findings and instead relied on an earlier opinion which requires an employer to conduct a case-by-case analysis of

whether the following factors apply before issuing a confidentiality requirement to a witness in an internal investigation related to employee misconduct. In order to limit the potential impact on an employee’s Section 7 rights during an internal investigation, the factors to be considered, and documented in the investigation file, include:

-Whether the witnesses need protection.
-Whether evidence is in danger of being destroyed.
-Whether testimony is in danger of being fabricated.
-Whether there is a need to prevent a cover up.
See Hyundai America Shipping Agency, 337 NLRB 80 (2011).

Other interesting points raised by the NLRB include the fact that these considerations need to be made regardless of whether the workforce is unionized or not or whether the request for confidentiality was a suggestion or a requirement. As such, Employers need to be aware of the potential issues raised by issuing a blanket confidentiality requirement to all witnesses based on the concerns identified by the NLRB. Of course, the need for confidentiality is going to still be present in some investigations, so Employers should be certain to document the factors set forth above and why they apply to a specific investigation if they feel that a request for confidentiality is warranted. As a practical matter, as long as an Employer documents during the course of each investigation the need for the request for confidentiality and the basis for that legitimate need is consistent with the factors set forth above, Employers should be protected from infringing upon their employee’s Section 7 rights during the course of an internal investigation.

CONSISTENCY AND DECISION MAKING

Once an investigation is complete, the employer must decide how to respond. The employer’s response will vary depending on the outcome of the investigation. Investigations generally result in one of three potential outcomes:

1. The allegations are corroborated;
2. The allegations are unfounded/disproven; or
3. No definitive conclusion can be reached regarding the validity of the allegations.

Each distinct outcome warrants a distinct response from the employer. When the Allegations are Corroborated . . .When the complainant’s allegations of wrongful conduct have been corroborated, several factors will help the employer determine the proper response. Under certain circumstances, the appropriate response may be obvious – e.g., if an employee has engaged in a sexual assault, theft, or other illegal conduct, then terminating the employee and alerting the proper authorities, if appropriate, is the correct discipline. For less egregious, offenses, the employer may consider a wide array of disciplinary measures, including, but not limited to:

_ Oral Warnings
_ Written Warnings
_ Suspensions (with or without pay)
_ Demotions / Transfers
_ Salary freeze
_ Sacrifice of bonus compensation

Two critical guideposts for determining the appropriate discipline are: (1) what form of discipline does the employer’s handbook prescribe for the particular misconduct; and (2) how have others who have engaged in similar conduct in the past been treated.  Implementing inconsistent forms of discipline among employees can result in claims of discrimination. For example, if a male employee is found to have engaged in sexual harassment for telling “dirty” jokes, and he receives a suspension without pay; then it would be a mistake to allow a female employee who engages in the same conduct to get by with merely an oral warning. Of course, there may be certain circumstances that would result in two employees who have engaged in the same conduct to be treated differently:

_ Where one employee has had prior discipline for a similar problem and the other employee has not.
_ Where one employee engaged in the prohibited conduct prior to going through training, while the other employee engaged in the same conduct after receiving relevant training.
_ Where one employee has supervisory authority and the other may not. Regardless of the reason, the employer needs to be able to provide a rationale, nondiscriminatory reason for the differential treatment. When the Allegations are Unfounded / Disproven . . . If the allegations are proven to be false, the employer should inform the employee who made the allegations that the allegations have been disproven. To the extent possible, the employer should try to find out why employee made the allegations in the first, and try to discover any other issues that could have affected the employee’s judgment. However, the employer should not take any action that discourages the reporting of wrongful conduct in the future. Furthermore, to avoid a retaliation claim, the employee who made the allegations should not be penalized. After all, it is not uncommon for employers to end up being liable for retaliation claims in cases whether the underlying complaints are without merit.

When the Investigation is Inconclusive

Oftentimes an investigator is unable to prove or disprove the allegations in a complaint. For example, a sexual harassment complaint may boil down to a “he said/she said” situation, with no corroborating evidence for either party. In such cases, the investigator may still be able to make some helpful credibility determinations.

ALSO, this would be a place to discuss the fact that in a he said/she said investigation with no witnesses, Employers need to make sure that the investigators are prepared to make credibility determinations about the witnesses, complainant and accused so that at the end of the investigation, if it truly is he said/she said with no corroborating proof, the investigators can make a well-informed decision based on the credibility determinations of the accused and the Complainant.

In such cases, the employer should consider:

_ Ongoing monitoring
_ Changing the reporting relationships of the parties
_ Conducting training on the issues implicated by the complaint

Again, the employee should not be penalized for bringing the complaint, even if the allegations remain unsubstantiated. For example, the employee making the complaint should not be involuntarily transferred due to the residual discomfort in the employee’s department arising out of the investigation; such actions by the employer could be deemed retaliatory.

Communicating the Results of the Investigation

When the investigation has been completed, the results should promptly be communicated to the complainant and the accused. Details need not be communicated, as the following example illustrates:

“Thank you for bringing your concerns to our attention. We promptly and thoroughly investigated your allegations. Our investigation corroborated a violation of company policy. The company has imposed appropriate discipline on Employee X, consistent with our policies and past disciplinary practices. We will continue to monitor the situation to ensure that the prohibited conduct has stopped. If you personally experience any of these problems in the future, please report them immediately. Also, if you experience any conduct toward you that you consider to be retaliatory, please report that as well. Again, thank you for reporting the problem.”

Certain situations may call for an explanation of the steps taken to remedy the situation – e.g., the employer could explain to a victim that her harasser has been transferred so as to avoid future contact between the victim and the harasser. In such cases, I recommend obtaining an acknowledgement on the part of the complainant that the remedy implemented has satisfactory resolved the complainant’s issues and concerns.

Obviously, when communicating with the accused (when the allegations have been corroborated), the employer will need to clearly convey the discipline to be imposed. In addition, the employer should communicate what the consequences of any future misconduct will be.

In most situations, no follow-up information need be provided to witnesses or other individuals who participated in the investigation. These individuals can simply be informed that the investigation has been concluded and that the employer has addressed the matter consistently with its policies and past practices. Any additional information should only be shared on a “need to know” basis.

“Never let a good crisis go to waste” – Winston Churchill Although often uncomfortable, workplace investigations provide an X-ray-like view of what is going on inside your organization. The investigation may result in the departure of toxic employees or managers who tolerated unacceptable behavior. In addition, investigations provide an opportunity for the employer to improve by re-examining policies and procedures.

Specifically, investigations can often lead to the following:

_ More effective training programs
_ Development of new policies
_ Improved monitoring
_ Improved communications

Employers would be foolish not to take advantage of such opportunities when they present themselves.

MOCK INVESTIGATION

An internal investigation interview should be broken up into several discrete sections that will allow the investigator, and the witness, to focus more specifically on the facts and circumstances of each investigation. Obviously, the biggest concern for an investigator is to make sure that she obtains all relevant information related to a specific set of facts without providing too much information to the witnesses being interviewed. An investigation is a balancing act that becomes easier with time. Keep in mind that the investigator’s role is to ask questions, not answer questions for the witness, with a few exceptions. Below, we have set out a list of the questions to be asked during most investigations, which will loosely follow the mock investigation held during today’s session. Obviously, questions should be tailored to each specific set of facts and circumstances. It is our experience that while the investigation process is a formal proceeding, often with the questions and statements being recorded, an informal, conversational approach puts the witness at ease and typically yields a more complete picture of the facts and circumstances at issue.

COMPLAINING EMPLOYEE BACKGROUND

- Length of Employment
- Who was your first contact with the Company?
- Who conducted your pre-employment interview?
- Current Position
- All other positions held within the Company
- Current Supervisor
- Current Job Responsibilities
- Current Compensation (Make sure to inquire about bonuses or other incentive pay.)
- What other supervisors have you had?
- What were your past job responsibilities?
- Compensation history with the Company
- Prior Disciplinary Issues (if any)
- Who conducted the discipline, if applicable?
- Any Prior Internal Complaint?
- If so, when, what and how was it resolved.

ALLEGATIONS MADE BY COMPLAINING EMPLOYEE

- Please explain, in your own words whenever possible, the events and circumstances which caused you to initiate this Complaint.
- What happened?
- Who was involved? (This includes those allegedly discriminating, but also any other individuals that you believe made discriminatory decisions or communicated them to you.)
- When did the event happen? (Ty to get dates as specific as possible, as well as what happened on each specific date.)
- Why do you believe these to be discriminatory?
- Please identify any all witnesses that you believe may have knowledge or information related to the events at issue.
- Please confirm that you have identified all instances of alleged discrimination against you.
- Please identify all individuals associated with the Company to whom you have reported the previous events, circumstances, or facts you have identified. For each person identified, please provide:
- Who you communicated with;
- When you first communicated with them;
- How many times you communicated with them;
- The method in which you told them (i.e. email, telephone, in person, etc.)
- Do you have a copy of any of the communications identified above?
- If you did not report the events, circumstances, or facts at issue in your complaint to a Company representative, why didn’t you?
- If you did make a prior report, did anyone from the Company follow-up with you?
- Was the follow-up and resolution adequate?
- If you did not believe it was adequate, please explain.
- Do you have a copy of any relevant documents related to the response and follow-up from the Company related to your prior report?

CLOSING COMMENTS

- Go over Employer’s Non-Retaliation Procedure
- Advise Employee that Company will do its best to maintain the confidentiality of this investigation by limiting disclosure to only those individuals that have a need to know. Please keep in mind that to conduct a complete and thorough investigation, Company will have to discuss certain of the statements made by you and others with others who were allegedly involved. However, Company cannot guarantee confidentiality if it is to conduct a thorough and complete investigation and to obtain an adequate resolution of your complaint.
- Company does not tolerate any form of discrimination. No retaliation will be allowed against you for initiating this investigation.
- If you believe that any act of retaliation occurs following today’s interview, please contact ______ immediately. If you believe _______has retaliated against you, then please contact __________.
- To that same effect, we are asking you to please immediately report any further incidents of discrimination that you experience, observe or hear about. Your participation is vital to our efforts to prevent discrimination in our workplace.

POTENTIAL WITNESS INTERVIEWS

To conduct an accurate, thorough, and complete investigation, the Company must investigate all potential witnesses identified throughout the course of the investigation. Typically, if the complaints are founded, there will develop a coherent nexus of individuals and parties involved, especially if the discrimination was observed by third-parties. In the case of “he said, she said” situations, there may be no third-party witnesses to interview.

IDENTIFY PURPOSE OF INTERVIEW

- Reiterate that Company has a policy prohibiting discrimination in the workplace. (It is also appropriate to read the policy to the witness at the start of the interview.)
- Advise Witness that a co-employee has made a complaint that is being investigated pursuant to Company’s anti-discrimination policy.
- Without disclosing specific facts, briefly explain the allegations that have been made. You can do so initially without naming the parties and identify the conduct alleged. If the witness has no knowledge of such conduct or facts, then you can disclose the name of the complainant. You could even do so without naming the alleged discriminator. It should be pretty apparent in a short amount of time as to whether Witness has any relevant information related to the alleged conduct.
- Advise Witness that he or she has been identified as a potential witness to the events and circumstances described in the complaint.
- Advise Witness that Company will strive to maintain confidentiality by limiting disclosure to only those individuals that have a need to know to conduct the investigation, but make sure the Witness understands that confidentiality of any statements made during the investigation cannot be guaranteed.

ESTABLISH WITNESS BACKGROUND

- Length of Employment
- Current Job Title
- Current Job Responsibilities
- Prior Job Titles With Company
- Prior Job Responsibilities With Company
- Do you know Complaining Party?
- How long have you known Complaining Party?
- Do you know Alleged Discriminators? (Use names, not tags).
- Please describe the nature of your relationship with Complaining Party?
- Please describe the nature of your relationship with Alleged Discriminators?
- Do you supervise any work of either party? (Should already know the answer to this question based upon chain of report, but always make sure.)
- Do you socialize with either Complaining Party or Alleged Discriminators?
- Have Complaining Party or Alleged Discriminators every supervised your work?
- If so, has either Complaining Party or Alleged Discriminator(s) ever disciplined, threatened to discipline, rewarded or promised to reward you in any way? (Looking for bias.)
- Do you participate in making hiring, firing, promotions, compensation or other terms and conditions of employment decisions for others? If so, for whom?
- Have you ever made or been in involved in making such decisions for either Complaining Party or Alleged Discriminators? If so, please describe:
- The decision made;
- the date the decision was made;
- other individuals involved in making that decision;
- and your personal role in the decision that was made. (What was your recommendation and why?)

ALLEGATIONS MADE BY COMPLAINING EMPLOYEE

- Are you aware of the allegations that have been made by Complaining Party?
- When did you first become aware of the allegations made?
- Do you have any information or knowledge related to the allegations made by Complaining Party?
- If so,
- what did you see or hear;
- when did you witness this;
- who did you see or hear;
- what was your reaction to this conduct?
- was any other person present for this conduct?
- Are you aware of any documents relevant to what you saw or heard? If so, please identify:
- where they are currently;
- whether you have a copy;
- whether you have access to those records;
- Please provide a copy of any relevant documents to _______________. (Identify party specifically.)
- Can you explain the facts and circumstances that occurred? Are you aware of any prior actions, facts, or circumstances that might alter the context of the alleged conduct or that might help us better understand what took place?
- Are there other relevant events that might have occurred before or after the alleged conduct which would provide a more complete picture of the events alleged?
- Did you ever discuss this situation or any other concerns with anyone else?
- If so, please identify:
- to whom you spoke;
- the individuals about whom you spoke;
-when you discussed this situation;
-where did this discussion occur;
-what was discussed;
-any and all witnesses present to these discussions.
- Do you believe the Complaining Party to be credible? If so why? If not, why not?
- Do you believe the Alleged Discriminators to be credible? If so, why? If not, why not?

RESTATE COMPANY’S ANTI-DISCRIMINATION POLICY

- The Company will not tolerate any form of retaliation against you for participating in the investigation. [It is appropriate to have the witness read the Company Anti-Discrimination Policy and to make sure that he or she has no questions about it.)
- Please immediately report any allegations of retaliation to ___________ or_________.
- Are you aware of any other instances of conduct which violates the policy you just reviewed.
- You are strictly prohibited from retaliating against others for involving you in this investigation.
- Please immediately report any further incidents of conduct in violation of the

Company Anti-Discrimination Policy that you experience, observe, or otherwise learn about to ____________ or ____________.

RETURNING TO WORK

- Thank the Witness for Participating.
- Please do not discuss the investigation or any information you disclosed to anyone else at work, including any individuals identified in this investigation. (IF BANNER ELEMENTS EXIST.)
- Please maintain a professional demeanor when dealing with all employees of the Company, including those identified in this investigation.
- As the Company is in the process of conducting an internal investigation into the allegations raised in the complaint, no determination has been made as to the merits of the allegations made until the investigation has been completed.

INTERVIEW OF THE ALLEGED DISCRIMINATOR

Advise Alleged Discriminator of the Purpose of the Interview

- Company has a policy prohibiting discrimination in the workplace.
- A co-worker has made a complaint that involves you.
- Briefly explain the allegations without specifics.
- Identify the Employee who made the Complaint. (Sometimes, the Alleged Discriminator will identify the employee before the Company does.)
- DO NOT AT THIS TIME IDENTIFY THE WITNESSES WHO PARTICIPATED IN THE INVESTIGATION AS IDENTIFIED BY THE COMPLAINING PARTY.
- Advise Alleged Discriminator that Company will do its best to keep all information divulged during the investigation confidential by limiting disclosure of that information only to those who have a need to know. However, Company cannot guarantee confidentiality of the information obtained.

EMPLOYER’S ANTI-DISCRIMINATION POLICY

- Are you aware that Company has a policy and practice of prohibiting unlawful employment discrimination?
- Do you remember receiving this policy during orientation?
- Do you remember reviewing this policy during annual training on _____? (Make sure you have sign in and attendance records for the annual training on antidiscrimination policy.)
- Provide a copy of Company Policy to Alleged Discriminator
- Read Company Policy to Alleged Discriminator?
- Identify examples of prohibited behavior under Company Policy.
- Remind Alleged Discriminator that policy strictly prohibits retaliation of any kind. Review anti-retaliation policy with Alleged Discriminator.
- Identify examples of prohibited retaliation under the Company Policy.

BACKGROUND OF ALLEGED DISCRIMINATOR

- Length of Employment
- Current Job Title
- Current Job Duties
- Are you a supervisor?
- Do you supervise Complaining Employee?
- Have you ever supervised Complaining Employee?
- Do you know Complaining Employee?
- Are you aware that Complaining Employee is in a protected category for employment purposes
- Are you yourself a member of this protected class?
- Do you make hiring, firing, promotion, or compensation decisions for others in the Company? If so, please describe:
- The decisions made in which you participated during the past 5 years;
- the date the decisions were made;
- other individuals involved in making that decision;
- and your personal role in the decision that was made; (What was your recommendation and why?)
- whether you supported the decision ultimately made; and
- any reaction from the parties involved at the time the decision was made.

RELATIONSHIP BETWEEN ALLEGED DISCRIMINATORS AND COMPLAINING EMPLOYEE

- How long have you known Complaining Employee?
- Describe the nature of your relationship with Complaining Employee?
- Do you have a relationship with Complaining Employee outside of the workplace?
- Have you experience any work-related, disciplinary, or other problems with Complaining Employee? If so, please describe.
- If you have had any prior problems, how were they resolved.
- If problems did exist and are still unresolved, please describe their pending status. (i.e. write-ups, suspensions, probation, etc.)

ALLEGED DISCRIMINATOR’S RESPONSE TO ALLEGATIONS

- Please respond to the allegations made by Complaining Party. This is your opportunity to tell your side of the story related to the allegations that have been made. Please include all relevant information that you think should be brought to our attention. We have not yet made a determination of the merits of the allegations and will not do so until after we hear from you.
- Is the complaint valid?
- Why do you think the Complaining Employee made this complaint?
- Facts and Circumstances underlying the Complaint.
- Discrepancies
- Do you have any evidence to support your view of the events? (Including witnesses that might support your side of the story.)
- Any additional facts that would help us understand the context in which the situation arose.
- Did you ever speak to anyone about the events alleged in the Complaint? If so,
- Who did you tell?
- When did you tell them?
- What did you tell them?
- What was their response?
- Did Complaining Employee ever make you aware of the allegations contained in the Complaint?
- Have you ever been involved in making decisions about the terms and conditions of Complaining Employee’s employment? If so, please identify:
- those decisions in which you participated during the past 5 years;
- when those decisions were made;
- who else was involved in the decision;
- your role in the decision-making process;
- the ultimate decision made;
- whether you supported the decision ultimately made;
- any reaction from the parties involved at the time the decision was made.
- Please identify the factors you considered in the decision-making process you described above.
- Were you aware of Complaining Employee’s protected class?
- Did Complaining Employee’s protected class status as set forth in the complaint play any role in the employment decision made?
- Please provide _________ with copies of any relevant documents related to the above questions.

REVIEW OF EVIDENCE

- We have obtained the following information and knowledge related to the allegations contained in the Complaint. [Review that information without including the witnesses provided by Complaining Employee if possible.)
- Do you have any follow-up comments related to the information that we have discovered?

CLOSING ISSUES

- The Company will not make a determination as to the merits of the Complaint until we review all of the evidence and conclude our investigation.
- Potential for Disciplinary Action if the investigation shows merit to the allegations contained in the Complaint. This could include re-assignment.
- As discussed at the outset of your interview, the Company will not tolerate any form of retaliation against Complaining Employee or any witnesses who may have participated in the investigation.
- Request for Confidentiality if BANNER ELEMENTS ARE PRESENT.
- Please maintain a professional demeanor when dealing with Complaining Employee.

QUESTIONS AND ANSWERS

QUESTION: How do you determine who is credible?

ANSWER: When the issue of assessing credibility arises, some investigators immediately bring up observations such as “failure to maintain eye contact,” “witness shifted in his seat,” or “witness was sweating profusely.” While these types of observations can potentially indicate that a witness is not being truthful, they are also subject to attack for being too subjective and unreliable. A far better approach is to analyze credibility based upon factors like contradictions in the employee’s story, opportunities to observe, or critical omissions.

QUESTION: Is it okay for an investigator within the organization to investigate someone higher up in the company (than the investigator)?

ANSWER: As a general rule, the organization should probably use someone outside the company if the investigation involves a high ranking officer within the company. If not, others may later challenge the fairness, thoroughness and objectivity of the investigation. However, if the organization has a compliance group that reports to the Board of Directors, rather than directly to the management team, then it would be okay. Look at the lines of authority to determine the risk of partiality, lack of independence or lack of objectivity.

QUESTION: Should the investigator ever tell the Complainant that the conduct being complained of is not illegal (or suggest that the Complainant does not have a claim)?

ANSWER: This issue comes up when HR receives a harassment complaint, and it becomes clear upon investigation that the Complainant doesn’t attribute the perceived harsh treatment as being related to any protected category. The investigator should never give legal advice; consequently, you should avoid making statements that would be interpreted as being an assessment of the merits of any potential legal claim. However, depending on the circumstances, it could be appropriate as an act of clarification to refer to your policy and confirm that what the employee is complaining of does not appear to be a violation of the company’s policy