Workplace Investigations Blog

WHEN SHOULD AN EMPLOYER INVESTIGATE? (PART 3)

Debra L. Reilly — Fri, 23 Mar 2012 13:04:35 -0800

investigations should be conducted in cases where no one formally complains yet the employer has learned of a claim of wrongdoing via an anonymous tip, citizen complaint, rumor, hearsay, or third-party employee complaining on behalf of the victim. An employer can be charged with constructive notice of the alleged wrongdoing, even if no one complains of the conduct, when the conduct is so pervasive that the employer should have known of it.

An employer should also investigate if a complaint comes in through the California Department of Fair Employment and Housing or the EEOC. The investigative report will be included in the employer’s response to the administrative complaint.

An internal human resources employee (or another trained employee) can investigate internally the large majority of complaints that an employer receives, and can usually do so within an hour or two by interviewing two or three eyewitnesses. More complex complaints involving multiple theories of liability, whistleblower statutes, and multiple parties will take longer, and may require hiring a qualified outside investigator.

Time and cost should not be offered as reasons for a failure to investigate. Failing to investigate for either of those reasons would be penny-wise and pound-foolish. When the management employee who decided not to launch an investigation is asked pointedly by the plaintiff’s attorney why he or she did not conduct an investigation and offers expense or lack of time as excuses, the judge or jury may not be sympathetic.

WHEN SHOULD AN EMPLOYER INVESTIGATE? (PART 2)

Debra L. Reilly — Mon, 19 Mar 2012 04:22:49 -0800

In deciding whether an employee complaint rises to the level of alleged illegal activity or company policy violations, employers should interpret the incoming complaint very broadly and err on the conservative side by investigating anything that comes remotely close to illegal activity or company policy violations—especially if the allegations are against a supervisor (due to the employer’s risk of strict liability).

What may seem initially to be an innocuous or petty complaint—which perhaps does not use the magical words “harassment,” “discrimination,” or “accommodation”—could actually be a hidden landmine that would have been discovered earlier if the company had conducted at least a preliminary investigation.

If an employer does not investigate and rule out, based on the facts, potentially illegal conduct early on, e.g., by documenting admissions or denials from the claimant in an investigative interview, a plaintiff’s attorney who surfaces later could create the illusion of some form of illegality retroactively, when a lawsuit is filed. Prudent employers nail down all of the facts in writing at the outset, or otherwise face a changing story.

WHEN SHOULD AN EMPLOYER INVESTIGATE? (PART 1)

Debra L. Reilly — Sun, 18 Mar 2012 19:08:21 -0800

Some types of employee complaints must be investigated as a matter of law, e.g., sexual harassment complaints. Although no statutes regulate how investigations must be conducted, the California Fair Employment and Housing Act (FEHA) (Cal. Gov't Code §§12900–12996) requires an employer to take “immediate and appropriate corrective action” when faced with a covered harassment complaint (see Cal. Gov't Code §12940), and the U.S. Equal Employment Opportunity Commission (EEOC) states:

When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly.

See EEOC’s Policy Guidance on Current Issues of Sexual Harassment dated March 19, 1990, available at www.eeoc.gov/policy/docs/currentissues.html.

For myriad business reasons, however, wise employers will investigate all complaints alleging any form of illegal activity or company policy violations. A prompt, thorough, and fair investigation conducted in good faith can insulate an employer from liability for wrongful termination (see Cotran v Rollins Hudig Hall Int’l, Inc. (1998) 17 Cal.4th 93; Silva v Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, improve employee morale, and prevent further harassment or discrimination from occurring.

Sexual Harassment Investigator Training in San Diego Area

Debra L. Reilly — Mon, 12 Mar 2012 11:22:35 -0800

Because I have received many requests to provide internal training to employees on how to conduct sexual harassment investigations, I will be offering open training on the subject to anyone interested, but the training will be geared towards Human Resources Professionals, Private Investigators, and Attorneys. Attendees of any background are welcome to attend, but some basic knowledge of sexual harassment law is helpful. If time is allowed, other types of investigative training will be covered. Questions and problematic scenarios are welcomed!

Date: March 30, 2012

Time: 9:30 a.m. - 12:00 p.m.

Location: 2240 Encinitas Blvd., Suite D-104, Encinitas, CA 92024

Cost: $105.00

No Walk-ins. Please make arrangements to prepay by March 28, 2012, by contacting Debra Reilly at debra@wpinvestigations.com

CAOWI Changes Name to AWI

Debra L. Reilly — Mon, 31 Oct 2011 12:27:25 -0800

California Association of Workplace Investigators (CAOWI) members have just voted to change CAOWI's name to the Association of Workplace Investigators (AWI).

AWI will now begin working to expand its membership to workplace investigators in any geographic location in the country--or world, for that matter. We greatly look forward to new associations with out-of-state investigators.

Investigating Travel Reimbursement Fraud

Debra L. Reilly — Mon, 31 Oct 2011 07:20:01 -0800

For best investigative results, travel fraud audits should be performed by an employer on at least a yearly basis if possible. The reason for this is that major hotels routinely purge their systems on a 6-month to yearly basis, so it can be difficult for an investigator to obtain detailed hotel expense information after a year.

This problem came up for me recently when asked to conduct an audit of travel expenses going back several years. In instances where the employee had submitted a non-itemized hotel receipt more than a year prior to the investigation, it was difficult to ascertain whether the employee had made fraudulent or padded hotel charges, including exorbitant hotel restaurant charges. Whereas more recent itemized hotel receipts could be obtained and they revealed meals for a spouse, children, and other guests at the hotel restaurant and excessive alcohol charges. Further, the itemized hotel receipts showed that meal expenses were charged to the hotel bill (which the employer reimbursed) even though the employee requested money back for the same meal in a separate entry on the expense report, and even though the employee had also received an advance "per diem" payment prior to the business trip to cover meals. In this case, the employee was obtaining a triple recovery for the same meal!

I recently heard a story about an employee somehow obtaining a handful of blank receipts from a restaurant and subsequently handing them out to co-workers who needed forms to submit expense receipts for meals. Employees have also been known to alter a duplicate copy of a receipt and change the document number, or change the dollar amount, for example, changing a "1" to a "4" or "7", or adding an extra digit to the front of an existing number, or cutting off the top the business name or logo of a document to hide an irregularity.

Another scam is to charge the employer for coach or business class airplane fare (on an expense receipt or using a company P-Card), obtain a refund on the ticket, then purchase a super-saver ticket for the same flight, and pocket the difference. Or worse, booking a trip and getting reimbursed for it by the employer, getting a refund from the airline, and not traveling at all. Or, an employee might claim he is attending a conference out of state, but then the meal receipts he submits (which are sometimes time-stamped by restaurants) reflect that he was dining in the middle of the day at location miles away from the business conference he was supposedly attending. In these types of cases, an employee has essentially received a full paid vacation out of town (free airfare, free hotel, free meals, plus salary) and is skipping the conference.

In sum, a strong monthly review and periodic audit process are essential to circumvent travel reimbursement fraud by employees.

Fraud: Investigating Procurement Card Abuse

Debra L. Reilly — Thu, 27 Oct 2011 16:06:14 -0800

A "procurement card" or "purchasing card" (also abbreviated as PCard or P-Card) is a form of company charge card that allows goods and services to be procured without utilizing a traditional purchasing process. P-Cards help employers manage high volumes of small purchases by employees that might otherwise overwhelm accounts payable departments. P-Cards are an area of great fraud potential in companies, and employers should perform periodic audits to determine if fraud is occurring.

I recently completed a large investigation involving P-Card abuse by multiple employees. This blog entry will point out some red flags to look for:

Employee is typically late turning in (or fails to turn in) monthly reconciliations to support the charges made.
Employee fails to attach any receipts at all, claiming they were lost.
Employee attaches a receipt, but not the itemized receipt presented to Employee at the time of purchase. Employee only submits the receipt showing the total amount charged, so as to avoid showing the specific items purchased. For example, Employee goes to Office Depot and claims he bought "office supplies", when in reality, Office Depot sells many personal items that Employee could have purchased for personal use at home or school supplies that Employee gives to his children. If you catch this fraud early enough, the vendor may be able to provide you with the detailed receipt and you can see exactly what was purchased. If you see Disney DVDs (or similar) on the receipt, then you know you've got a problem. If you see printer toner cartridges that don't match the model of printers at the employer's business, then Employee is likely using company funds to supply his home office (which may not be allowed by company policy).
Employee was recently placed on probation or knows he is in danger of termination, which may motivate Employee to cheat the Employer out of money pre-termination.
Employee presents multiple monthly reconciliations at one time right before the deadline believing that the documentation will undergo very little scrutiny due to the last minute submittal.
Employees submits receipt with long list of items hoping to bury personal items in the long list.
Employee makes purchases at restaurants for multiple people, and you see children's dinners ordered, or alcohol purchases that may be against company policy.
Employee makes multiple gas or food purchases over the weekend when he is not traveling for business.
The person in charge of reviewing the P-Card purchases has a reporting relationship to the Employee submitting the monthly reconciliations, and simply signs off on the reconciliations in fear of retaliation if the reconciliation is scrutinized or questioned. Similarly, if the Employee submitting the reconciliation is the same person in charge of reviewing the reconciliations, this is a situation of the fox guarding the hen house and must be avoided. For example, the CEO or CFO should not be in charge of reviewing his own reconciliations.

These are just some examples of potential fraud indicators, and they don't necessarily mean that fraud is actually occurring every time one of these indicators pops up. Employers can implement controls to prevent this type of abuse, but that is beyond the scope of this entry.

Credibility Determinations: EEOC Guidelines on Harassment Investigations

Debra L. Reilly — Wed, 19 Oct 2011 19:40:14 -0800

In sexual harassment investigations, it is often the case that harassment occurs behind closed doors, with no witnesses, and it becomes a "he said-she said" scenario. Instead of reaching a finding that the allegations were "sustained", "not sustained", or "unfounded", I have heard of investigators reaching an "inconclusive" conclusion, and in such an instance, the employer (who asked for the investigation to be conducted) and the complainant are no better off after the investigation than they were before the investigation began. Such a finding puts the employer back to square one, left wondering, "What do we do now?"

What investigators should keep in mind is that they are being asked to reach a well-reasoned conclusion, considering all facts on both sides of the story, weigh the evidence based on a preponderance of the evidence, and make a credibility determination between the complainant's story and that of the alleged wrongdoer.

According to the EEOC's Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors dated June 18, 1999:

If there are conflicting versions of relevant events, the employer will have to weigh each party’s credibility. Credibility assessments can be critical in determining whether the alleged harassment in fact occurred. Factors to consider include:

Inherent plausibility: Is the testimony believable on its face? Does it make sense?

Demeanor: Did the person seem to be telling the truth or lying?

Motive to falsify: Did the person have a reason to lie?

Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?

Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.

It is highly advisable for investigators to discuss these factors in their written reports whenever there are conflicting versions of relevant events.

Duty to Reasonably Accommodate 100% Totally & Permanently Disabled Employee

Debra L. Reilly — Sat, 15 Oct 2011 01:03:12 -0800

Cuiellette v. City of Los Angeles (Case No. B224303, Court of Appeals of California, Second District, Apr. 22, 2011) is a reminder to employers that simply because an employee (in this case, a police officer) has been rated as 100% totally and permanently disabled--for workers’ compensation purposes--the employer is not relieved of its duties under the Americans with Disabilities Act (“ADA”) and Fair Employment and Housing Act (“FEHA”). A workers’ compensation rating, even 100% disabled, does not mean that the employee cannot be a qualified individual entitled to an individualized assessment of his or her disability through an interactive process and a reasonable accommodation.

In this case, the LAPD had a policy of offering injured police officers one of 250 permanent “light-duty” positions as an accommodation, but the LAPD fired the plaintiff after he worked five days in the light duty assignment when they learned that he was 100% disabled according to his workers compensation rating. According to the court, the relevant inquiry should have been for the LAPD to determine whether the employee was a qualified individual who was able to perform the essential functions of the position to which he was, or would be reassigned--not whether he was able to perform the essential duties of his original position.

After his termination, Cuielette filed a lawsuit alleging that the City of Los Angeles violated FEHA by sending him home because of his workers compensation disability rating, failed to engage in the interactive process, and failed to accommodate him. He received a $1,571,500 jury verdict, and after three appeals, the Court affirmed the jury’s finding that the City had violated FEHA by summarily sending Cuiellette home because of his disability rating and without engaging in the interactive process.

Bottom line, workers comp is a whole other animal, and the ADA and FEHA must be analyzed independently.

Gender Identity Discrimination Investigations

Debra L. Reilly — Fri, 14 Oct 2011 14:20:39 -0800

On October 9, 2011, Governor Jerry Brown signed into law AB 887, which prohibits discrimination based on “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” The law will take effect on January 1, 2012.

Current California laws already protect employees from discrimination based on gender identity and gender expression because California non-discrimination laws define "gender" to mean sex, including a person's "gender identity" (how they see themselves) and "gender expression" (how other people see them) (Education Code 66260.7 and Penal Code 422.56). However, "gender identity and expression" do not currently appear as a specific categories within California's various non-discrimination laws, but now AB 887 will place "gender identity and expression" alongisde other protected categories in the state's non-discrimination laws, which should assist employers in effectively addressing discrimination against transgender people.

The bill adds language to several anti-discrimination statutes, including sections of the Fair Employment and Housing Act, to define the term "sex", which includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth; and "sex" also includes, but is not limited to, a person's "gender"; "gender" means sex, and includes a person's "gender identity" and "gender expression"; "gender expression" means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth. Thus, AB 887 will clarify law by directly adding "gender identify" and "gender expression" to the list of protected classes.

Existing law requires an employer to allow an employee to appear or dress consistently with the employee's "gender identity". This bill would additionally require an employer to allow an employee to appear or dress consistently with the employee's "gender expression".

If the claims under investigation so warrant, workplace investigators may want to consider checking employment posters, employee handbooks, etc. as part of making a factual determination during a gender identity or gender expression discrimination investigation post-2011.

Genetic Information Discrimination Investigations in California

Debra L. Reilly — Fri, 14 Oct 2011 10:04:36 -0800

California Senate Bill 559, a civil rights protection bill was signed into law by Governor Jerry Brown in September 2011, and will go into effect on January 1, 2012. The new law will protect Californians by prohibiting discrimination based on an individual’s genetic information. This state law follows along with federal law ("GINA") already in effect. The bill's sponsor, Senator Alex Padilla states:

This new law enhances the civil rights of every Californian. Ten years from now as more and more Californians obtain their genetic information they will look back and thank Governor Brown for protecting them from discrimination.

The bill amends the Fair Employment and Housing Act (FEHA) to prohibit employment and housing decisions based on genetic information. SB 559 also amends the Unruh Civil Rights Act to prohibit unequal access to accommodations, advantages, facilities, privileges, or services provided by business establishments based on genetic information. SB 559 defines “genetic information” as information about an individual’s genetic tests, the genetic tests of family members of the individual, or the manifestation of a disease or disorder in family members of the individual.

“Genetic information” includes “any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.” The definition excludes information about an individual’s sex and age, which are already considered to be protected classes under state civil rights laws. SB 559’s definition of genetic information closely tracks the language of the corresponding definition in GINA.

In sum, workplace investigators should note that this law creates a new "protected class" under California law.

Discrimination Investigation: Good Resource Book

Debra L. Reilly — Thu, 13 Oct 2011 15:07:36 -0800

I attended a presentation today at the 29th Labor & Employment Law Section Annual Conference where Andrew Friedman of Helmer Friedman in Venice, CA, was one of the speakers. Mr. Friedman typically represents employees in employment disputes; however, he previously worked for a prestigious employment defense firm, so he has a very grounded ability to look at discrimination cases from both sides--which is a skill required by workplace investigators. I had the opportunity to look through his book Litigating Employment Discrimination Cases, which is written for both plaintiffs and management lawyers.

I highly recommend it for workplace investigators as well.

CAOWI Annual Conference November 13-15, 2011

Debra L. Reilly — Thu, 13 Oct 2011 13:51:15 -0800

Readers may already know that I am on the Board of the California Association of Workplace Investigators ("CAOWI"). I wanted to tell you about our Second Annual Conference that is coming up this November 2011, and let you know about an optional pre-conference session. It's called "Examining the Investigation: A Demonstration of Trial Testimony of the Investigator and the Expert Witness", which promises to be very informative for all people who conduct workplace investigations.

We have six speakers for this demonstrative training session: Amy Oppenheimer, Rhoma Young, Nancy Bornn, Michael Robbins, Julie Moore, and the Hon. William F. Highberger.

Per CAOWI's website, here is the summary of what will be covered:

Investigators often dread having to defend their investigation at trial. How will their work look under the microscope of cross-examination? This trial demonstration will show just that. Based on a hypothetical set of facts the employer’s investigator will be examined and cross-examined and an expert witness will give her view, also via examination and cross-examination, as to where the investigator went wrong.

I hope to see you there!

Workplace Investigation Training in Los Angeles

Debra L. Reilly — Thu, 21 Apr 2011 12:17:32 -0800

I wanted to let my readers know that I will be conducting training on how to conduct defensible (aka "bulletproof") workplace investigations.

The California Association of Workplace Investigators and The State Bar of California Labor and Employment Law Section are co-sponsoring this event, and registration is now open.

Date: May 17, 2011, 9 a.m. to 4 p.m.

Title: Workplace Investigation Basics: From the Decision to Investigate to the Final Report

Location: Los Angeles office of JAMS/ADR, 707 Wilshire Blvd, 46th Floor, Los Angeles CA 90017

Presenters: Katherine J. Edwards, Michael H. Leb, Rich H. Ramirez & Debra L. Reilly

This fast-paced, interactive program is designed to teach all of the practical skills necessary to investigate any allegation of employee misconduct. Among other things, you will learn how to: ask effective questions, interview reluctant witnesses, obtain relevant evidence, assess credibility, and arrive at a legally defensible decision. You will also learn how to prepare and utilize all of the necessary documentation during the investigative process. Each attendee will receive a program workbook containing valuable checklists, forms, and templates that will assist them in carrying out investigations.

5.5 Hours MCLE Credit Pending

CAOWI Members $180 • Labor & Employment Law Section Members $240 • Non-Members $300

Investigative Procedures in Firefighter Investigations: Make Sure to Follow Pre-Investigation Rules

Debra L. Reilly — Wed, 28 Jul 2010 11:38:54 -0800

California's Firefighters Procedural Bill of Rights Act (FBOR) contains many requirements that might ensnare the unwary investigator. An investigator investigating the conduct of a firefighter, paramedic, or emergency medical technician (who might be subject to "punitive action" by his/her public agency employer) must comply with the following investigation and pre-investigation procedures:

The firefighter under investigation shall be informed, prior to the interrogation, of your name and the names of all other persons you expect to be present during the interrogation.
The firefighter under investigation shall be informed of the nature of the investigation prior to any interrogation.
All questions directed to the firefighter under interrogation shall be asked by and through no more than two interrogators at one time.
The interrogation shall be conducted at a reasonable hour, at a time when the firefighter is on duty, unless an imminent threat to the safety of the public requires otherwise.
The interrogating session shall be for a reasonable period taking into consideration the gravity and complexity of the issue being investigated.
The person under interrogation shall be allowed reasonable breaks to attend to his or her own personal physical necessities.
The firefighter under interrogation shall not be subjected to offensive language or threatened with punitive action.
A “promise of reward” shall not be made as an inducement to answering any question.
The employer shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation. Subject to that grant of immunity, a firefighter refusing to respond to questions or submit to interrogations shall be informed that the failure to answer questions directly related to the investigation or interrogation may result in punitive action (Lybarger warning). Gov’t Code Section 3253(f). (Note: This requirement of a written offer of immunity raises questions since a Fire Department has no authority to grant immunity.)
A firefighter cannot be required or requested to disclose his or her assets, income, or debts unless required under state law or pursuant to court order.
The employer (or investigator) cannot search the firefighter’s locker or other space for storage unless the firefighter is present, or her or she consents, or he or she has been notified that a search will be conducted, or unless a valid search warrant has been obtained.
The complete interrogation of a firefighter “may” be recorded. If a recording is made of the interrogation, the firefighter shall have access to the recording if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The firefighter being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
The firefighter shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those portions that are otherwise required by law to be kept confidential.
Notes or reports that are deemed to be confidential shall not be entered in the firefighter's personnel file.
If, prior to or during the interrogation of a firefighter, it is contemplated that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights (Miranda warning).
Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that may result in punitive action against any firefighter, that firefighter, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.
The representative shall not be a person subject to the same investigation. The representative shall not be required to disclose, or be subject to any punitive action for refusing to disclose, any information received from the firefighter under investigation for noncriminal matters.

Since most of these procedures are the same as California's Public Safety Officers Procedural Bill of Rights Act (POBR), any ambiguities in, or questions about, these procedures can probably be cleared up by reviewing the POBR cases (several of which I've discussed in prior postings concerning POBR).

Conducting Firefighter Investigations: Firefighter's Procedural Bill of Rights Act

Debra L. Reilly — Tue, 27 Jul 2010 13:14:31 -0800

California public safety officers have had their own procedural bill of rights for the last three decades, so it is only fair that California firefighters should also have a procedural bill of rights (as many other states have also enacted). The Firefighter’s Procedural Bill of Rights Act (FBOR) became effective January 1, 2008; thus, case law has not had sufficient time to develop concerning this statute (California Government Code Sections 3250 through 3262). However, since FBOR was patterned after the Public Safety Officers Procedural Bill of Rights Act (POBR), the various rights will probably be given the same meaning by the courts.

Under FOBR, a "firefighter" means any firefighter employed by a public agency, including, but not limited to, any firefighter who is a paramedic or emergency medical technician, irrespective of rank, but does not include probationary employees or inmates performing firefighting duties.

When any firefighter is under investigation that could lead to “punitive action,” and the firefighter is subjected to interrogation by his or her commanding officer, or subjected to an investigative interview by you (if you are so designated by the Fire Department retaining you), FOBR applies. "Punitive action" means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.

FOBR contains many requirements, and any investigator conducting such an investigation (internal employee or outside investigator) should stay abreast of the technical requirements of these statutes and the developing case law in this area.

No Matter How Bad it Looks, Don't Rush to Judgment: Do an Investigation

Debra L. Reilly — Tue, 27 Jul 2010 09:53:23 -0800

News flash: Context matters! Big headlines this last week about the Obama administration's rush to judgment in demanding the resignation of Shirley Sherrod, the former Agricultural Department's Chief of Rural Development in its Georgia office. She was forced to resign after a 2 and 1/2 minute clip of her March 2010 speech at an N.A.A.C.P. event in Georgia was all over the Internet and the news.

Had her employer conducted even a cursory investigation (a few hours locating, and listening to, the whole 45-minute speech or even talking to Ms. Sherrod), it would have learned the truth. In her speech she recalled a period 24 years ago when she worked for a nonprofit agency that helped rural farmers fight bankruptcy. In the brief excerpt, she spoke of helping a white farmer, but not with the “full force of what she could do" or with what she then believed black farmers needed in assistance. She recounted how the white farmer had ultimately opened her eyes to the truth that white farmers faced much the same threat as blacks and that “there is no difference between us.”

According to a CBS News story on July 20, the white farmer’s family has confirmed her story saying “She’s a good friend”, “She helped us save our farm,” "She's a friend for life" and how she helped them out of bankruptcy.

So, the context was that she was using a personal story from 24 years ago to make a point that it was not about "black and white", but about helping the poor.

According to a New York Times editorial on July 21:

Ms. Sherrod told of how an agriculture under secretary phoned her to demand she resign instantly via her BlackBerry. The official anxiously cited the likelihood that the furor would “be on Glenn Beck tonight.”

By the time the conservative commentator took up the issue, the full transcript of the speech was out and Mr. Beck was citing Ms. Sherrod — but as a victim of administration recklessness. This time, he was right.

ROLE OF OFFICER'S REPRESENTATIVE DURING INVESTIGATIVE INTERVIEW

Debra L. Reilly — Fri, 09 Jul 2010 05:00:00 -0800

The Public Safety Officers Procedural Bill of Rights Act (POBR) contains many requirements. Some of the rights that a workplace investigator should be familiar with are the "representative" requirements. POBR states the following three rights:

• Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any officer, that public safety officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.
• The representative shall not be a person subject to the same investigation.
• The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the public safety officer under investigation for non-criminal matters.

Unavailability of Chosen Representative. How long can an interview be delayed based upon unavailability of the public safety officer’s representative? Courts have held that it is the public safety officer’s responsibility to secure the attendance of a chosen representative who is physically able to represent the officer at the reasonably scheduled interrogation. In other words, the interview does not have to be unreasonably delayed because of the “chosen” representative’s unavailability; otherwise, “an officer could prevent any interrogation by simply choosing a representative who would never be available.” Upland Police Officers Assn v. City of Upland, 111 Cal.App.4th 1294 (2003).

The City of Upland court stated,

Nothing in [POBR] suggests that interrogations may be repeatedly postponed [due to the unavailability of the “chosen” representative] or that the time chosen for the interrogation is subject to the schedule of the chosen representative. . . .

The court concluded:

We only hold that such right is not unlimited. The officer must choose a representative who is reasonably available to represent the officer, and who is physically able to represent the officer at the reasonably scheduled interrogation. But it is the officer's responsibility to secure the attendance of his or her chosen representative at the interrogation. If he or she is unable to do so, the officer should select another representative so that the interrogation may proceed "at a reasonable hour."

Role of Representative. What role does the representative play during the interview? Unlike investigations involving the private employee, the public safety officer’s representative does not have to be silent. Instead, courts have held that a public safety officer’s representative may speak, object, clarify questions, and even elicit favorable facts during the interrogation.

Thus, the representative can take an assertive role to assist in ascertaining the facts of an incident in the pursuit of protecting the public safety officer. The California Supreme Court identified the purpose of the public safety officer’s representation during an investigatory interview in Civil Service Ass’n v. City and County of San Francisco, 22 Cal.3d 552, 567 (1978):

A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. . . .” (citing NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).

A note of caution – this does not equate to adversarial confrontation during the interview.

Detail and Timing of Notice to Officer under Investigation

Debra L. Reilly — Thu, 08 Jul 2010 13:29:16 -0800

The Public Safety Officers Procedural Bill of Rights Act (POBR) contains many requirements. One requirement of particular concern to workplace investigators is the "notice" requirement. POBR states that the public safety officer under investigation shall be informed of the "nature" of the investigation "prior" to the interrogation.

Of course, this begs the questions-- How much detail? How much prior notice?

Detail in Notice. How much detail must the officer be given beforehand to meet the “informed of the nature of the investigation” requirement? Although POBR does not specifically tell us, it should be more than a generic interrogation notice, but less than providing each and every specific factual allegation against the peace officer. A notice providing the general nature of the allegations, with adequate content to understand the charges, might look like this:

It has been alleged that you have engaged in conduct that violates the department’s sexual harassment policies. The alleged conduct includes inappropriate comments, touching, emails, computer usage, and photographs over the course of six months.

The particulars of these allegations must then be fully explored during the investigative interview.

Time of Notice. How far in advance must the public safety officer be informed of the nature of the investigation? Again, POBR does not directly state the specifics of the “notice” requirement. Courts have used a “rule of reasonableness,” recognizing that peace officers should receive the notice far enough in advance so as to be able to prepare an adequate response.

Internal EEO Workplace Investigation Training in San Diego

Debra L. Reilly — Fri, 05 Mar 2010 18:02:15 -0800

The Society for Human Resource Management (SHRM) is holding its annual conference in San Diego this year June 27 - 30, 2010. I thought I would alert you to two pre-conference workshops concerning conducting internal workplace investigations. Both workshops are on Saturday, June 26, before the conference begins.

The first is titled Minefields for HR Professionals in EEO Investigations. The summary for this workshop is:

Let’s face it, when you do an investigation, almost always, one of the parties believes you got it wrong. In litigation, brought by either the complainant or the accused, the focus is not only the alleged underlying wrong, but also how it was investigated.

In other words, the litigation spotlight shifts to HR. It also will provide guidance on frequent minefields for you such as: how do you handle the employee who shares concerns with you but then begs you not to investigate; how do you ask about sensitive matters without your questions potentially making the parties to the investigation more uncomfortable; how do you handle complaints involving third parties without risking joint employer status; how do you document each step of the process, knowing that your documentation is discoverable; and how do you handle the very specific problems of investigating a complaint against an executive to whom you report (such as the CEO) or by employees in your group (one HR professional against another).

This session is conducted by Jonathan A. Segal, partner, Duane Morris, Philadelphia, Pa.

The second workshop is titled Conducting Effective Internal Investigations. The summary for this workshop is:

This session will provide the practical skills necessary to conduct an internal investigation into claims of employee misconduct for HR professionals as well as your security, risk management and loss prevention personnel. We will take you and your staff step-by-step through the investigation process. We utilize interactive case studies during the day so that you can actually practice these skills. We will also teach you to prepare effective documentation at each stage in the investigation process.

This session is conducted by Glen E. Kraemer, managing partner – LA, Curiale, Dellaverson, Hirschfeld & Kraemer, LLP, Santa Monica, Calif.

If interested, you can register for these pre-conference workshops with SHRM.