Human Resource and Labor Relations professionals (HR/LR) normally take the lead on workplace investigations of employee misconduct. Given that, they may also bear the blame for investigations that result in adverse employment actions that do not withstand litigation scrutiny. If a current or former employee challenges an adverse employment action via an EEOC or NLRB charge, a DOL complaint, a CBA grievance, or court action, the employer incurs significant expense and disruption simply defending the action. The employer’s exposure increases exponentially if the employer loses the case on the merits before a regulator or court. Consequently, HR/LR should devote sufficient time and attention to workplace investigations to avoid challenge in the first place, where possible, and to ensure the best chance of winning on the merits if a challenge does take place. But where to look for guidance? This blog answers that question and provides a checklist for HR/LR to follow to conduct employee misconduct investigations that will withstand litigation scrutiny.

What’s at stake? Not just discharge investigations

As a threshold matter, HR/LR should not take short cuts when conducting workplace investigations involving non-discharge offenses. We have handled hundreds of expensive EEOC/NLRB/DOL charges challenging progressive discipline, failure to transfer, failure to promote, increased supervision, shift assignments, reduced hours, and pay issues. Thus, HR/LR should test every adverse employment action investigation against the checklist items discussed here, with one basic question in mind: Will this investigation stand up to scrutiny by someone who is skeptical of everything you do?

Who do we focus on?

Recent events, including the #MeToo movement, rightly focus HR/LR on protecting the rights of an accuser, ensuring a timely and effective response, when dealing with employee complaints against co-workers, managers, or third-parties. But when HR/LR professionals think about conducting investigations that will withstand litigation scrutiny, they must focus on the rights of accused. Any reviewing regulator or court will bring that focus to the table given that the accused will become the charging party, complainant, or plaintiff.

What do we focus on?

Should HR/LR focus on the legal elements of the McDonald Douglas or Wright Line burden shifting analysis when analyzing investigation steps and conclusions? No. Instead, HR/LR should focus on principles of basic fairness. If HR/LR ensures that every adverse employment action withstands the “fairness” test, they will significantly reduce the chance that the affected employee will challenge the decision in the first place and will significantly increase the chance that the employer will win if there is a challenge. Indeed, applying basic fairness in the disciplinary investigation process will go a long way to helping your management team establish one of the seven key skills for supervisor success that we cover during our full-day supervisor training programs.

Where do we focus our attention?

Where do we find guidance on what “fairness” means in the workplace context? We look to 100 years of private judicial decisions applying the “Law of the Shop” in the unionized workforce context where every adverse employment decision requires “just cause” to survive litigation scrutiny.

Note that you must evaluate “fairness” principles in addition to the specifics of particular potential causes of action that may require an analysis of “legal” factors like protected class/activity, employer knowledge, temporal relationship, animus, adverse action, serious/pervasive conduct (harassment), replacement/selected candidates, and statute of limitations issues; all of which present myriad different analytical issues under, e.g., Title VII, NLRA, DOL, ADEA, FMLA, ADA, PDA, WC, USERRA, and state/federal whistleblower, retaliation, Sick Leave, and Parental Leave statutes, in addition to Employment Contract and CBA questions

Also note that you must apply “fairness” principles in addition to analyzing investigation mechanics; e.g., who does it (Ops/HR/LR/3p), should it be directed by counsel for the attorney-client privilege, how to message to the alleged wrongdoer during investigation, investigation timing (day of week, time of day), physical location, interview timing, witness order/sequencing, timing for obtaining witness statements, witness instructions (confidentiality), time adjustments for off-duty participants, role/identity of decision maker, audio/video recording, electronic records search, records retention, and interviewee requests for a witness/attorney.

What are the keys to a fair investigation distilled from the “Law of the Shop”?
I. Reasonable Rule or Order

Was the policy/supervisor rule or order at issue reasonably related to the orderly, efficient, and safe operation of the business?

Don’t assume! Ask why do we have that rule or why did you give that order? Be able to explain it to the affected employee.

If it is a stated goal or objective, be ready to point out where that goal/objective is found to the affected employee.

If it is not a stated goal or objective, ask Why Not? If an oversight, fix it; update policies/procedures.

If not, ask yourself again whether the rule or order will withstand skeptical scrutiny; it cannot be arbitrary or capricious or lack a clear connection to workplace objectives.

II. Prior notice to affected employee
Notice of rule: Did the employer/supervisor explain the rule, its meaning, it purpose, and application to the affected employee in advance?

An employee can’t be expected to comply (or come into compliance/improve in the progressive discipline context) without notice.

Notice of consequence for failure to follow rule: Did the employer/supervisor explain the likely/potential consequences for not following the rule or order, e.g. next level of discipline?

Notice is a key advantage of a progressive discipline policy.

Is the rule clear, understandable, and understood? Use training/orientation to ensure this factor.

Did the employer communicate the rule in the employee’s first language?

Need evidence of notice, usually through acknowledgement forms (updates too!); remember Steve’s Second Rule of Employment law (if it is not in writing, it does not exist).

Exception: Conduct so egregious that societal norms will establish notice.

III. Timing of Investigation
Did the employer conduct an investigation before making a decision?

Did the employer conduct the investigation in a timely manner (Steve’s 72 hour rule to avoid claims of loss of memory and documentation)?

Delay: degrades reliability of investigation (memories fade, witnesses leave, documents get lost); undermines idea that the employee is not qualified.

Did the employer “stockpile” violations, claiming “this one” broke the camel’s back? Stockpiling is just a form of delay.

Did the employer collect and analyze all relevant evidence before making decision (no rush to judgment)?

No predetermined result! (Check emails! Supervisors are terrible at jumping to conclusions and then putting them in writing before an investigation even starts; if you see that happened, you must correct it in writing).

IV. Thorough Investigation (not just going through the motions; you must protect the right of the accused to a “fair” process)

Did the employer appoint a qualified investigator with responsibility to oversee the entire investigation?

Did the employer collect and analyze all relevant evidence? For example: audio/video recordings, business records (hardcopy and electronic), witness interviews of the accuser, percipient witnesses, the accused, follow up interviews on new/additional information.

Did the employer obtain comprehensive witness statements?

Did the employer investigate with an open mind? i.e., An honest explanation about the purpose of the investigation? Open ended questions? No pressure on witnesses for particular responses?

Did the employer give the accused adequate information to give a meaningful response? i.e., notice to accused of (a) accusations, (b) applicable rule/order, (b) prior notice of rule/order, (c) reason for rule/order, (d) evidence in support of the accusation, (e) reason warranting a potential adverse action, and (f) right to respond.

Did the employer give the accused notice of any new accusations/witnesses?

Did the employer follow up on new information or new witnesses disclosed during investigation?

Did the employer analyze and consider the accused response/explanation?

Did the employer look for exculpatory evidence; i.e., the other side of the coin? Particularly where a second language is at issue or the accused refuses to respond or defend himself/herself.

Did the employer evaluate witness input for: admissions against interest; content (level of detail, relevance); reliability (perception, encoding, recall); consistency (logic; common sense; witness’ own knowledge, belief, motive; external sources such as other witnesses, documents, records, recordings); prejudice/bias?

Did the employer retain all relevant evidence/integrity of evidence?

Did the employer appoint the appropriate person to make the decision?

Did the employer appoint a single decision maker in advance (no final decisions by committee; must have a witness that says, “I decided, and here is why; Ok to have a committee for input)?

Did the employer present/explain/discuss all relevant evidence and proposed conclusions to/with decision maker?

Did the employer follow up on any questions or concerns by the decision maker?

V. Proof

Remember Steve’s Employment Law Rule #2.

Confirm you have shaken all the trees; looked under all the rocks.

Don’t assume! Test all assumptions for factual basis/evidence.

Truly substantial; what does that mean? 70% sure, at least; if not, give a “reminder” warning and notice (again) of the rule, the reason for the rule, and the consequence of further violations.

Indicia of a lack of proof; i.e., an unsupported investigation/decision:

  1. Different reasons/different times; Shifting explanations.
  2. Post-hoc rationalizations; new after-the-fact explanations/new facts purportedly relied on; creating after-the-fact documentation.
  3. Rushed paper trail right before adverse action (e.g., to comply with progressive discipline policy).
  4. Exaggeration.
  5. Setting unattainable or unrealistic goals (designed failure).
  6. Deviation from policy.
  7. Inaccuracies in the employer’s story; particularly in position statements submitted to regulatory agencies (that is why we treat position statements as mini motions for summary judgment; penny/pound).
  8. Failure to document investigation or discipline.
  9. Lack of documentation for “facts” relied on for adverse action.
  10. Inconsistent with performance history.
  11. Reliance on totally subjective criteria.
  12. Statistics.

VI. Consistency

Steve’s Employment Law Rule #1 (no good deed goes unpunished).

Did the employer treat similarly situated employees the same (easy to say)?

Look back period: two-three years

Scope of comparison: same decision maker, same department (prior decision makers), same group, same facility, same area.

What does “similar” mean? Same prior record/tenure/position/etc.

Did the employer give “equal” evidence from accuser and accused the same weight?

VII. Penalty

Is the penalty reasonably related to seriousness of the offense? i.e., does the penalty fit the offense?

Corrective, not punitive.

No double jeopardy.

Don’t aggregate offenses (a form of delay).

Generally use progressive discipline (expected unless really egregious offense); helps with the prior notice factor.

Prior discipline for same type of offense?

If not same type of offense, did the employer give the employee notice that it would impose next-level discipline for any additional offense, regardless of type?

Did the employer consider the tenure/seniority of the employee (fairness generally dictates that long-tenured employees get a little extra consideration)?

Were there mitigating circumstances?

Conclusion
Judges and arbitrators have applied various versions of the seven steps of industrial due process described above to answer the “fairness” question for over a hundred years. Sometimes, to see the way forward, we must look back. That maxim applies here for HR/LR professionals who want to protect their businesses from litigation risk.