Last week at The Emplawyerologist we looked at when and why an employer might need or want to conduct a workplace investigation. This week, we will look at who should conduct the investigation. We already know that employers in situations described last week (click here for review) are among those who should or must begin an investigation. This focus is on which person or entity on behalf of the employer should conduct the investigation? Can/should it be HR? In-house counsel? Maybe outside counsel or even an outside investigator? Is an outside investigator really necessary? Does it really matter who does the investigation on behalf of the employer? If so, why? We will address these and other questions after the jump.
In order to answer the questions raised before the jump, we need to look at some recent (and two less recent) U.S. Supreme Court cases. In June, the US Supreme Court decided Vance v Ball State University No. 11-556 (2013), and University of Texas Southwest Medical Center v Nasser No. 12-484, 6/24/13. In turn those cases build somewhat on Ellerth v. Burlington Industries, Inc., 524 US 742 (1998); and Faragher v. Boca Raton, 524 US 775 (1998) (these cases were apparently decided more or less together, as the issues overlapped).
In Faragher and Ellerth, the Court held that, under Title VII of the Civil Rights Act of 1964, employers are vicariously and strictly liable for their supervisors’ workplace harassment of, and/or discriminatory conduct toward, employees. What is the difference between strict and vicarious liability? Strict liability is liability without regard to fault or bad faith. An employer who is strictly liable for a supervisor’s harassment will be liable even if it took all appropriate steps to stop or prevent the supervisor’s behavior. The employer’s good faith efforts do not matter. Here, the employer is also vicariously liable, meaning the supervisor’s acts in effect are the employer’s. In contrast, with harassment or other misconduct perpetrated by a co-worker who is not a supervisor, the employer’s good faith does matter, and can mitigating an employer’s liability. An employer is “only” vicariously liable for harassment or discrimination inflicted by employees’ co-workers if the employer was negligent in either discovering or remedying the offending conduct. An employer therefore can escape liability for a co-workers harassment and/or discriminatory conduct if it proves: a) that it exercised reasonable care to prevent and promptly correct the behavior; and b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Why do we have this difference? The rationale is that employers give supervisors authority to act on behalf of the employer and that employers should bear the risk of any supervisor behavior that abuse that authority.
Farragher and Ellerth did not actually decide the question of who qualifies as a supervisor. Vance essentially articulated the standard for determining who is a supervisor for purposes of deciding when an employer will be strictly liable for harassing and/or discriminatory behavior. I will not digress further into specifics about Vance here, though if you are interested you can click here to read the opinion. Finally, in University of Texas SW Medical Center v Nassar, , the US Supreme Court ruled that a plaintiff alleging unlawful retaliation for protected opposition to suspected discrimination under Title VII of the 1964 Civil Rights Act must prove that “but for” the retaliation s/he would not have suffered the adverse employment action. The alleged retaliation cannot simply one motivating factor among many for the adverse employment action.
What might these cases tell us about who should conduct workplace investigations on behalf of employers? Remember, the first requirement of the Faragher/Ellerth defense is proving exercise of reasonable care in preventing and/or promptly correcting the behavior in question. The investigation becomes the most important tool available to help you, the employer, figure out your ultimate response to the allegations. How else could you determine what most likely happened, let alone the appropriate response? Similarly, where an employees alleges that s/he was terminated in retaliation for complaining about harassment or discrimination, how does an employer successfully argue that other factors led to the termination without investigating?
So, an investigation may be necessary, but what does it matter who investigates on the employer’s behalf? What happens to your Faragher/Ellerth defense If you have just anyone conducting the investigation,and that person does a poor job? If you use someone who is not knowledgeable of the relevant laws, you risk losing your defense. What if the person is biased? How can that person conduct a fair, impartial, thorough and appropriate investigation that protects you, the employer, from liability? The US District Court for the Northern District of Ohio addressed this and other concerns in EEOC v. Spitzer Case Nos. 1:06CV2337 and 1:08CV1326, 1:08CV1542 and 1:09CV255. In that case, the employer’s attorney also conducted the investigation. The case ended in a mistrial after the court learned that the employer did not turn over the attorney’s notes from the investigation of discrimination allegations during discovery. The judge, for that and many other reasons, sanctioned the employer to the tune of $300,000. The court noted that since the employer “relied heavily on the Faragher-Ellerth defense in this matter”, that the “heart of the defense would necessarily center around how [the employer] responded to [and] investigated complaints of harassment and discrimination”. The judge’s analysis alluded to the conflict of interest inherent when an employer asserts this defense and uses its in-house or usual outside counsel, who will likely be called as a fact witness at trial. So, how do you ensure that you have the right person conducting the workplace investigation? Here are some points you should first answer:
- Whoever conducts the investigation will likely get called as a witness in a lawsuit.
- Since your attorney cannot also be a witness, s/he should not conduct the investigation if you want him/her as the attorney of record in a lawsuit.
- The person conducting the investigation should be knowledgeable of the relevant federal and state employment laws.
- The person should be able to remain impartial while conducting the investigation. When in doubt, and if the allegations are particularly serious, consider engaging an outside investigator.
Many may find engaging an outside investigator to be the safest option. Is that always necessary? Employers who have competent, knowledgeable in-house HR practitioners and/or in-house counsel that they are comfortable can remain impartial and who they do not mind being witnesses at trial may opt to save themselves the extra expense. Please note however, that some states may, in some circumstances, require you to use a licensed, professional investigator (h/t Gregory Reese ). Also, note that not every allegation will warrant a full-blown investigation. Some situations may be resolved by speaking with the people involved and facilitating an understanding between the parties.
So what should you do? If you do not have competent in-house counsel, then seek advice from competent outside employment counsel, and keep in mind that each situation might warrant a different answer to that question.
Well, that wraps up this week’s segment. Join me next week and we will discuss the “how” of workplace investigations, aka the “do’s and don’ts”. See you then!
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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Click here to hear my guest appearance on Legalocity about the recent US Supreme Court case, Vance v Ball State University, a case dealing with workplace harassment allegations
While not a HR-related issue, I used to work in the insurance field as a risk management and safety specialist conducting property and casualty insurance inspections. The two companies that I had worked for had a different philosophy about me retaining my field notes. One said that I should, the other said it was not necessary as my report is the legal document. BTW, I kept all of my notes on all of my visits for three years beyond my retirement in case I was called into court. Your thoughts from a legal perspective?
I would agree that you should keep your notes. I hear of too many cases where it comes out in a deposition that someone in an investigatory capacity had notes and then there is an argument over whether on or more parties are entitled to those notes. Aside from that, your notes may be a better vehicle for jogging your memory if you are called as a witness. One way to ensure something is not read is not to write it, so someone investigating a matter will probably want to keep his or her comments and observations as factual and objective as possible. If one is going to include anything subjective in his or her notes, s/he might want to make sure that s/he is comfortable with those comments being revealed in a trial, deposition or elsewhere.
Although not an attorney, I do have very significant jury trial experience being a police officer for over 20 years. I’ve been through over 100. My perspective from this experience, is that it doesn’t matter if you keep your notes or not. What matters most is that you are consistent in whatever you choose. If you save some you better save all. Moreover, notes can actually become evidence, so if you do save them, its best practice to treat them as you would any other evidence.
There are positives and negatives from either choice. However, my opinion and the opinion of every other police officer and investigator that I know, is the negatives outweigh the positives. Jeanette does bring up a good point that notes can jog your memory sometimes better the report. However, notes can complicate testimony and evidence if there is something in your report that is not in your notes, or if there is something omitted from your report that are in the notes.
The best practice that I found is to take good notes if not recording the information, complete your report based off of your recollection and notes, and then destroy the notes and do this for every case.
From an investigative standpoint, its better not to take notes at all and just record the interview. Taking notes can disrupt the interview, change the entire tone, and make it so you miss important information. You can then have it transcribed or just go back and listen to the interview and write your report from the actual words spoken. This is the most accurate and efficient way to conduct an interview, and then report your findings.
Please don’t consider this legal advice, it is simply the opinion from one investigator.
Greg, thanks again for making some great points! I especially agree with your point about consistency, which may be the most important. One problem with workplace investigations though, is that recording is often not feasible, particularly if the matter being investigated is a sensitive one, such as harassment. The interviewees are often uncomfortable with being recorded and might then be less forthcoming. In that sort of scenario, taking notes is really the only real option, as the facts will simply be too much to remember without notes.
Jeanette, again this is a very good article with great information. The two cases you cited at very important for employers to consider when deciding how to handle these investigations or complaints.
I agree with your opinion that not all investigations need to handled by an investigator, or outside company. What I have found to be very helpful and efficient, is for the employer (again a W-2 employee not contracted HR consultant) to conduct an “Administrative Inquiry”. Read the complaint, make sure you have a clear understanding of what the actual complain is, speak with the victim/complainant to make sure the information in the complain is accurate, and determine if there are any potential policy violations or misconduct.
You must remember that you can’t discipline an employee more than once for the same action. Be careful not to administer any discipline until after the entire investigation is over, whatever type of investigation you choose. A conversation with the violator in certain contexts can be construed as a counseling session or verbal reprimand. If at the conclusion of the investigation you determine the person needs to be terminated or some other serious reprimand, you could end up precluding that from happening.
If you determine the complaint warrants an investigation, you should consider hiring a licensed investigator who is experienced to conduct the investigation. You definitely can have your attorney conduct the investigation, however, most attorneys will suggest otherwise. Jeanette already explained about becoming a witness and not being able to represent you in court. Another consideration is cost. I private investigator is much less money that an attorney. The third and final reason, is because attorneys have great knowledge of the law, they are not trained investigators and may not know the best investigative tactics and practices.
Said that, if you do have in-house counsel or a business attorney you consult with, it would be best to take the final report and findings to them for review and suggestions.
Again, please don’t accept this as legal advice since I am not a lawyer. This is simply an opinion from one investigator!
Greg, it looks like you’ll be getting another hat tip next week, as you have touched on points I expect to cover in some fashion in next week’s post. These are, once again, great points. I love having feedback from other professionals in the field, who have different perspectives. I agree with you that being an attorney does not necessarily mean that you have good investigative skills. Some do. Others do not. There, of course, are many complaints that, do not require such an in-depth investigation. Yes, they must be investigated, and yes, the investigation should be thorough, but again a thorough, appropriate investigation will vary somewhat from case to case. Thanks again for your great input!
Point well taken. Your welcome.
Good article and as an HR professional I agree that impartiality and knowledge of employment, Federal and State labor laws is essential to workplace investigations. I have experience with workplace investigations and have learned that being consistent, clear and concise in communications and documentation is essential so that the employer and counsel can build a strong defense. Experienced senior HR Managers can do an excellent job of conducting the initial investigation – interview all parties and document the facts.
Great article! I am a union representative and have been involved in employee investigations and discipline for many years. Our agency, government, centralized their HR. Now we have supervisors and administrators investigating employees as well as contacting HR who brings in an attorney to ask the questions. Previously, HR would be charged with the investigation. The impact of having an attorney to ask questions has been very scary to workers and having supervisors contact the different parties, asking questions of co workers, is really harming trust and relationships around here as well. I have a termination case that the union will easily win because no one cares enough to be educated about Just Cause and progressive discipline. That might sound good that the Union would win, but I previously had a relationship with HR, when they were specific to our agency, to discuss amicably the pros/cons of each case and they were generally smart enough to consider Just Cause and what they needed to prove. I would much rather not put workers through the stress and harm of a termination and work to fix the problem.
Hi Rebecca,
Thank you for your interesting insights. Your comments point out not only that who does the investigation can matter, but how the people conducting the investigation handle it is critical as well. There are some investigations where it may well be appropriate to have an attorney ask the questions. When that happens in my opinion it’s a good idea to ensure that the attorney understands company culture and the relationships that union and HR have and to do his/her best to work with that. While the idea of an attorney conducting an investigation can be intimidating, if the attorney handles it right it need not be. Also, the fact that the attorney conducts the investigation need not mean that once the attorney has gathered the information and given his/her impressions that there cannot be amicable resolution of the matter. HR and senior management can take into account the attorney’s observations, impressions and recommendations. Also, the attorney conducting the investigation is NOT the employer’s outside counsel, and therefore s/he generally should not be allowed to get in the way of an amicable resolution, when an amicable resolution is feasible and appropriate.