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California: Workplace Investigations Master Class: HR's Role in Investigating Internal Complaints and Responding to Charges

California: Workplace Investigations Master Class: HR's Role in Investigating Internal Complaints and Responding to Charges

Product Code: HCA12082020


1st Attendee $549.00*
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$549.00
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California: Workplace Investigations Master Class: HR's Role in Investigating Internal Complaints and Responding to Charges

On-Site Seminar:
San Diego, California | Tuesday, December 8, 2020

Brand new for 2020! BLR’s Workplace Investigations Master Class is the training you need to resolve workplace problems and mitigate your organization’s liability.

Workplace Investigations Master Class: HR’s Role in Investigating Internal Complaints and Responding to Charges is an all-day workshop with ample time for discussion and questions.

This course prepares you to better manage your workplace investigations by focusing on real guidance and you’ll leave class ready to make improvements that will strengthen your organization and reduce your risk. You will be prepared to:

  • Resolve ongoing and future workplace problems
  • Mitigate your organization's liability
  • Prevent third-party intervention
  • Demonstrate good faith
  • Preserve evidence that may be needed in the future


This Master Class will help you perform full and fair investigation that will provide you with a solid legal defense. You will be able to rely on a reasonable, good-faith investigation as part of your defense against employment claims, especially when harassment is involved.

Each class includes a highly interactive portion of interactive hypotheticals, where our faculty of employment attorneys walk you through a series of hypotheticals demonstrating the real-life workplace investigations issues that challenge even the most seasoned of HR practitioners. You’ll have the opportunity to discuss issues with your trainers and fellow attendees to determine the correct course of action to take, based on the facts presented and your knowledge of fundamental compliance principles.

Registration begins at 7:30 a.m. The program begins at 8:30 a.m. and concludes at 4:30 p.m. There will be morning and afternoon beverage breaks and boxed lunch is included in registration fee.

See the BLR difference for yourself!

  • Focus on the actual rules: Taught by attorneys with real-world experience.
  • Tools and skills to navigate investigations: Our instructors provide valuable tools and resources that will help you keep your organization prepared long after the Master Class ends.
  • Hands-on learning: Attendees participate in discussion with the attorney presenters and peers in the class to ensure they understand the concepts and know how to apply them to actual situations.
  • Small class size: A low participant-to-teacher ratio is guaranteed.
  • Highly rated, well-established program: BLR has been conducting Master Classes for decades and participants consistently give our courses excellent ratings.
  • Interactive hypotheticals: During this highly interactive portion of the Workplace Investigations Master Class, our faculty of employment attorneys will walk you through a series of hypotheticals demonstrating the real-life workplace investigations issues that challenge even the most seasoned of HR practitioners. You’ll have the opportunity to discuss issues with your trainers and fellow attendees to determine the correct course of action to take, based on the facts presented and your knowledge of fundamental compliance principles.


For questions or group discounting, please contact our sales team at EventSales@BLR.com or call
800-274-6774 ext. 8996.

Agenda

Class time: 8:30 a.m. to 4:30 p.m.

The day includes 1 hour for lunch and two 20-minute breaks.

  1. Importance of Proper Workplace Investigations
    1. Challenges
      • Variety of complaints
            1. Harassment, theft, sabotage
      • No magic formula
        • Must tailor investigation to issues
      • Risks
        • Greater harm in shoddy investigation
        • Uncover unknown problems
      • Benefits
        • Resolve issues internally
        • Nip problems in the bud
        • Help employer’s defense
        • Employee morale

  2. Legal Consideration
    1. Confidentiality
      • EEOC's and OSHA's views on confidentiality
        • Confidentiality is vital element
          1. Can affect witness statements
          2. Destruction of evidence
          3. Fear of retaliation and leaked information
      • Confidentiality and the NLRB
          1. In the past: Needed legitimate business justification that outweighed Section 7 rights
          2. Currently: Can require confidentiality during investigation
      • Confidentiality in your workplace Investigations
        • Can’t promise absolute confidentiality
          1. Employer must investigate harassment
          2. Need to reveal information during investigation
        • Can promise confidentiality to extent possible
          1. Need-to-know basis
          2. Require confidentiality from those involved in investigation
    2. Retaliation
      • More retaliation charges filed with EEOC than any other; survives underlying charge
      • Protected activity
        • Complaining or threatening to complain about discrimination
        • Providing information in internal investigation
      • Materially adverse action by employer
        • Any action that might reasonably deter a person from engaging in protected activity
        • Not limited to employment-related actions
        • Includes retaliation against third party in relationship with complain
      • Causal connection between activity and action
        • Employer took action because of protected activity
      • Avoiding retaliation
        • Confidentiality – need to know only
        • Training supervisors on actions to avoid
        • Review process for proposed actions

  3. Conducting the Investigation
    1. When should investigations be done?
      • DO investigate when you
        • Receive a complaint
        • Become aware of misconduct (knew or should have known)
      • DON’T
        • Ignore chronic complainer or “disgruntled” employee
        • Decide the outcome before you investigate
        • Delay – start within 48 hours if possible
    2. Intermediate steps
      • Intermediate action required pending investigation?
      • Suspend accused with or without pay?
      • Would accuser prefer to take leave? Voluntary only
    3. Internal investigation vs. outside services
      • Who will investigate?
        • No perceived conflict of interest, if possible
        • Outside consultant or attorney?
        • Must understand company policies and applicable laws
      • Traits of an effective investigator
        • Can commit to time and attention needed for investigation
        • Has strong planning and project management skills
        • Has working knowledge of subject matter
        • Is a skilled listener and keen observer – what’s said, what isn’t
        • Can craft questions designed to elicit full responses
        • Is able to establish a rapport with witnesses
        • Remains objective
        • Can identify when additional resources/outside assistance needed
        • Will be a good witness at a jury trial
      • Other Considerations for Choosing Investigators
    4. Review relevant documents
      • Company policies
      • Complaint – history of complaints
      • Employment files
      • Acknowledgement of receipt of policies/training
      • Other evidence – emails, notes, photos

  4. Interviews
    1. Order of interviews
      • Typically: Complainant, accused, witnesses
      • However: Adjust order to obtain most complete picture
    2. Choosing who to Interview
      • Are employees required to participate?
      • Request to record the interview
        • Employers are not required to allow recording – confidentiality is key
        • Option - Allow review and sign off on notes
        • Employee secretly records – some states require all parties to consent
    3. Interview location
      • Private area where interviews can’t be seen or overheard and interview won’t be interrupted
      • Location should put witnesses at ease
      • Consider off-site location if necessary
      • Room should be comfortable and facilitate clear communication (verbal and nonverbal)
      • Furniture can act as a physical and psychological barrier between interviewer and witness
      • Consider sitting around a small table rather than behind a desk
      • Don’t block witness’s access to the door
    4. If employee asks to have someone else present
      • Weingarten rights – applies only to
        • Union members
        • Meetings that may end in disciplinary action
        • Presence of union rep
      • Options if request is made
        • Grant request and delay interview until rep arrives
        • Discontinue interview or allow employee to choose whether to continue unrepresented
        • Forgo the interview entirely
      • Union rep may assist and counsel employee during interview
        • May not interfere with employer’s right to conduct an effective investigation and
        • May not tell employee not to answer questions
    5. Preparing Interview questions
      • Open-ended to allow many possible answers that usually include more information, feelings, attitudes, understanding of events
      • Listen carefully to response, observe body language, try not to interrupt with questions until witness has finished
      • Sometimes a “forced silence” during which investigator makes notes and then is silent encourages witness to add information
      • Questions to Ask Parties and Witnesses from EEOC
    6. Interviewing the complainant
      • Sample interview questions from EEOC – for complainant
        • Find out the who, what, when, where, and how of the misconduct
        • How did you react?
        • Are there other persons who have relevant information?
        • Was anyone else present?
        • Did you tell anyone?
        • Are there any notes or other documentation about the incident?
        • Do you know of any other relevant information?
        • How would like to see the situation resolved?
    7. Interviewing the accused
      • Sample questions from EEOC – for alleged harasser
        • What is your response to the allegations?
        • If claims allegations are false, ask why complainant might lie.
        • Are there other persons who have relevant information?
        • Was anyone else present?
        • Are there any notes or other documentation about the incident?
        • Do you know of any other relevant information?
    8. Interviewing third party witnesses
      • Sample questions from EEOC – for third party witnesses
        • What did you see or hear?
        • What did the complainant tell you? When?
        • Do you know of any other relevant information?
        • Are there other persons who have relevant information?
    9. During the interviews
    10. After the interviews
      • Transcribe notes
        • Date/time of interview
        • Name/title of those present during interview
      • Follow up as needed
        • Physical evidence (e.g., email mentioned by witness)
        • Additional questions for witnesses

  5. Documenting the investigation
    1. Documentation goals
    2. Document in real time (or as close to it as possible)
    3. Dos and Don’ts of documentation
      • Don’t make legal conclusions
      • Don’t include hearsay
      • Don’t make generalizations
      • Don’t use labels
      • What you should do
    4. Easily deleted material
    5. Final Report
      • Investigation report – what to include
        • Chronology of investigation process
        • Note any inconsistencies in witness statements
        • Note any relationships between witnesses (e.g., witness related to accused)
        • Findings of fact, not legal conclusions
        • Copies of relevant documents
      • Investigation report – what not to include
        • Hearsay
        • Generalizations
        • Editorial opinion
        • Labels (e.g., aggressive female)
      • Tips for writing the report
        • Tips for writing reports
        • Allow enough time to write (and review and edit) report – it’s a big job!
        • Write for third parties who might read report (e.g., legal representatives, judges)
        • Be mindful of personal, sensitive information
        • Use professional, respectful tone
        • Use care with language describing credibility
        • Organize report for benefit of reader
        • Clearly worded headings
        • Explain investigation process
        • Include what you might consider standard operating procedures – may not be obvious to third party reading the report
        • Explain standard of proof used
        • Weingarten rights respected, if applicable
        • Follow up as needed if gap found in evidence
        • Present each allegation and response clearly
        • Make clear links between evidence and findings of fact
        • Connect the evidence to the violation of policy, if any
        • Proofread and have another person proofread
        • Make sure report is marked as containing confidential, sensitive information

  6. Making a determination
    1. Credibility Determinations from EEOC
    2. Taking appropriate action
      • Investigator not included in decisions (exception: small employers)
      • Was there a violation of policy?
        • Prompt reasonable response, consistent with policies and past practices
        • If you deviate, document reasons (e.g., repeat offender)
        • Document evidence relied on to draw conclusion
      • Conduct violates antidiscrimination policy
        • Prompt, effective action to stop discrimination immediately
        • Correct any effects of discrimination
        • Prevent it from happening again
    3. EEOC guidance on corrective action
      • Assurance of Immediate and Appropriate Corrective Action from EEOC
      • Examples of Measures to Stop the Harassment and Ensure that it Does Not Recur
      • Examples of Measures to Correct the Effects of the Harassment
    4. Examples of corrective action
      • Warning – oral, written
      • Transfer or reassignment (no involuntary transfer of complainant)
      • Demotion
      • Suspension
      • Termination of employment
      • Training
      • Monitoring to ensure effectiveness
    5. Actions to Correct Effects of Discrimination
      • Restore leave taken because of discrimination
      • Remove negative evaluations that resulted from discrimination
      • Reinstatement
      • Back pay
    6. Document actions taken
    7. Concluding the investigation
    8. Follow Up
      • Effectiveness of actions taken
      • Encourage reporting if misconduct reoccurs
      • Reiterate employer’s policy against retaliation
      • Provide training refresher
      • Redistribute employer policies

  7. Special considerations
    1. Investigating sexual harassment
      • Prompt initial response may be needed
      • Emotionally fraught situation
      • Confidentiality is vital
      • Conflicting reports (he said/she said)
      • Retaliation – accused is angry/wants revenge
    2. Investigating as public employers
      • Constitutional protections for employees
        • Right to privacy
        • Due process
        • Free speech
      • Whistleblower laws
    3. Conducting Workplace Investigations Remotely
      • Determine whether some witnesses may be interviewed later, in person
      • Interview witnesses using videoconferencing
      • Know your technology and have a trial run
      • Make sure technology is secure – use unique ID/passcode
      • Carefully plan document/screen sharing
      • Interviewee – private space, quiet, able to see/hear, be seen/heard
      • Have an alternative communication mode just in case
      • Remote investigations – challenges
        • Preserving physical evidence
        • Access to hard copies of documents (e.g., employment records)
        • Remote interviewees may be more easily distracted, lack focus
    4. What to do when agency investigators come to your workplace 
      1. What to do when regulators come knocking
      2. Get a professional involved
      3. Preserve evidence
      4. Who is likely to show up?
        1. OSHA/MOSHA
        2. NLRB
        3. EEOC
        4. OFCCP
        5. Police

Your San Diego Faculty

Danielle Moore

Danielle H. Moore, Esq.
Partner
Fisher Phillips LLP

Danielle Moore is a partner in Fisher Phillip LLP’s San Diego office and chair of the firm’s Development Committee. She represents and counsels employers in all aspects of labor and employment law, including employment discrimination, wrongful termination, harassment, retaliation, and wage-hour class action lawsuits, as well as employment handbook and personnel policy preparation, and general preventive advice including hiring, discipline and termination practices. Danielle has experience litigating matters in state and federal courts, state administrative tribunals, and in arbitration. Moore regularly conducts management training and lectures on employment issues. She also teaches an employment law course at San Diego State University and serves on the Human Resources Advisory Board for the University. Danielle also serves on the Board of Directors for the PHCC Academy and the Lawyers Club of San Diego. Danielle also serves as President of the Lawyers Club’s North County Chapter. Moore is "AV" Peer Review Rated Preeminent by Martindale-Hubbell and was recently recognized in the 2020 edition of “Best Lawyers in America,” one of San Diego’s 2014, 2015, 2016, and 2018 "Top Attorneys," one of 2014 and 2015’s "Best of the Bar," as well as one of the "Top 40 under 40 Best and Brightest Minds of San Diego." Danielle was also a 2016 finalist for San Diego Magazine’s “Woman of the Year." She is also the former co-chair of the firm’s firm-wide Women's Initiative and Leadership Council.

Program Location and Date

When: Tuesday, December 8, 2020
Where: Homewood Suites by Hilton San Diego/Del Mar
11025 Vista Sorrento Parkway
San Diego, CA 92130 (858) 523-0500
Venue Contact: Valeria Corona Valeria.Corona@Hilton.com
Parking: Complimentary parking