SHRM ®

EDUCATION

Leading Workplace Investigations

Participant Guide

HR Competencies
HR Expertise (HR Knowledge)
Analytical Aptitude
Communication
 Leading Workplace Investigations

HR Competencies

Communication Analytical Aptitude HR Expertise

(HR Knowledge)

SHRM, the Society for Human Resource Management, creates better workplaces where employers and employees thrive together.
As the voice of all things work, workers and the workplace, SHRM is the foremost expert, convener and thought leader on issues
impacting today’s evolving workplaces. With 300,000+ HR and business executive members in 165 countries, SHRM impacts the
lives of more than 115 million workers and families globally. Learn more at SHRM.org and on Twitter @SHRM.

SHRM Seminars are approved to

offer Professional Development
Credits (PDCs) for the SHRM-CPSM
and SHRM-SCPSM credentials

© 2021 Society for Human Resource Management

Workplace Harassment: Practices for Leading a Healthy Culture

All Rights Reserved
 LICENSE AGREEMENT FOR SHRM LEADING WORKPLACE INVESTIGATIONS
PARTICIPANT MATERIALS

By opening and using these SHRM LEADING WORKPLACE INVESTIGATIONS

participant materials (the “Materials”), the user (“User”) hereby agrees as follows:

(i) That the Society for Human Resource Management is the exclusive copyright owner
of the Materials.

(ii) Provided that the required fee for use of the Materials by User has been paid to
SHRM or its agent, User has the right, by this License, to use the Materials solely for his/her
own educational use.

(iii) User has no right to print or make any copies, in any media, of the Materials, or to
sell, or sublicense, loan, or otherwise convey or distribute these Materials or any copies thereof
in any media.

(iv) These Materials are for educational use only and are not intended to provide legal or
other professional advice. These Materials should not be the sole resource used by User for the
application of the law to a specific situation or problem. User should consult an attorney or other
appropriate expert regarding the application of the law to a specific situation or problem.

SHRM Seminars are approved to

offer Professional Development
Credits (PDCs) for the SHRM-CPSM
and SHRM-SCPSM credentials

© 2021 Society for Human Resource Management

Workplace Harassment: Practices for Leading a Healthy Culture

All Rights Reserved
Slide #1

Slide #2

1
Slide #3

Slide #4

2
 Slide #5

Instructions:
Review each question below and answer in the classroom or in the chat pod in the virtual
environment.

1. Would you rather your commute one hour for a job you love or 10 minutes for a job you
hate?

2. Would you rather manage people or be an individual contributor?

3. Would you rather be the funniest person in the virtual classroom or the smartest person
at a party?

4. Would you rather be paid double for a year, and continue working or be able take a year
off, and be paid your regular rate of pay?

5. Would you rather go to HR to discuss an alleged misconduct by your boss (and know
beforehand that an investigation will take place, that your boss will face repercussions,
and you will be asked to transfer to another department), or would you rather remain
quiet (and know beforehand that the misconduct will continue towards you and other
colleagues)?

3
Slide #6

Slide #7

4
Slide #8

Slide #9

5
Slide #10

Slide #11

6
Slide #12

Slide #13

7
 Slide #14

Carefully examine and evaluate all allegations and complaints for substance and credibility, as
well as the information and sources needed to confirm the validity or lack thereof.
It is critical to act promptly in deciding what action, including investigation, is appropriate. Delays
in this process can only increase the likelihood of a bad outcome.
The general rule is that an internal inquiry of some type is warranted for any credible
information of potential wrongdoing; however, not all complaints will warrant a full and formal
investigation. Setting the appropriate level of investigative response is important. No one wants
to get involved in a major “wild goose chase.”
However, an investigation is always warranted with discrimination, sexual harassment, theft, and
fraud.

8
Slide #15

Slide #16

• Will administrative leave take place before or after you confront the accused?
• Will removing the accused make things better or worse?

9
 • Who should you consult beforehand? HR? Legal? Is a risk or threat assessment
necessary?
• How will you respond to the accused when asked why removing him or her is necessary?
• What, if anything, should co-workers and members of the public be told about the
employee’s departure?
• What are the terms of the leave? With pay? Who should he or she contact?
• What should he or she do during that time?
• Be careful when temporarily transferring employees, as transferring the complainant
against his/her wishes can lead to further claims.
• Check with your general counsel/employment lawyer on the ability to take action against
the complainant, as it may be viewed as retaliatory and could cause an action against the
employer.

Slide #17

Instructions:
Review the case study listed below and discuss at your tables (or in breakout rooms in the virtual
environment) whether a formal internal HR investigation should occur, by answering the
questions listed below the case.

10
Case & Facts
Sylvia has been working for your company for just over three years. She works extremely hard
and is interested in climbing the corporate ladder. She wanted to be selected for your in-house
management training program, and after a grueling screening process that included a series of
panel interviews, she recently learned she has not been selected for the program. She asked her
boss, Frank, why she was rejected from the management training program, and he told her, “You
don’t have executive presence.” Frank reports to Henry, who reports to the CEO. Sylvia contacts
HR and says she needs to meet with someone regarding a list of grievances, that she has been
keeping for three years. She tells you she didn’t come forward sooner, as she didn’t want to rock
the boat and hurt her chances of promotion, such as being accepted into the management
training program, so she kept quiet about her concerns. Sylvia tells you that her boss has
“crossed the line” many times, and that she has witnesses, confidants, and copious notes on
many incidents she believes you need to know.

Questions:
1. Should an internal investigation occur?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
2. What determining factors did your group discuss as reasons why an investigation is
necessary?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
3. Who is the business leader you may want to engage at the onset, and why?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
4. What standard considerations did you use to support the decision?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

11
 Slide #18

Slide #19

Our view of an “Investigation” is a situation/complaint/issue that needs to be looked into, facts

analyzed, determination made with possible corrective action as outlined in the 7-step
framework laid out in this course.

12
For situations/complaints/issues that don’t rise to this level but are raised by an employee or
other company stakeholder (customer/vendor/partner/shareholder, etc.), a notation should be
made the issue was raised, how it was responded to, and if relevant, the reason why an
investigation wasn’t deemed to be necessary.
This four-step model for problem solving can be used to help us ask questions. Depending on
what you hear from the client, you can ask questions from the other quadrant. For example, if
the client is talking about what they have done, what they are doing or planning to do, it is often
helpful to get them to back-up, and think about the specific situation that occurred. Ask
questions from quadrant 1 – What happened? Can you walk me through an example? How often
does this happen? What was the impact when it happened? Follow up with questions about how
the client analyzed the situation – What do you think is the reason this happened? Have you ever
seen something similar?

Slide #20

13
 Slide #21

“Triaging” the complaint, which is a process in which things are ranked in terms of importance or
priority. What it comes down to is quickly making an accurate assessment of information to
decide how much and what type of resources are needed. Triaging may require some initial
action steps before a proper assessment can be made.

14
 Slide #22

Consider order of witnesses

• Do you need to speak to other witnesses before the accused?
• Should one employee be interviewed before another to avoid possible influencing
of testimony?
• Can you compel the accused to an interview-teacher situations, public employees
and crimes
Set expectations for the complainant and leadership about timelines and milestones. (when will
the investigation be complete; who will be interviewed when; build in extra time for unplanned
discoveries.
The person responsible for the evaluation must make the evaluation immediately because failing
to act promptly may aggravate matters.
Approach internal investigation like a qualitative, phenomenological study through which you are
capturing emergent information about the lived experiences of participants based on non-
quantitative data. The data collected is in narrative form.
Explain conclusions will be summative, based on reported, valid/confirmable facts which were
reported in a narrative fashion.
It is helpful to map out questions you plan to ask each person before you head into interviews,
recognizing that once you get into the interview, you must go where the facts take you.

15
 Slide #23

Slide #24

First, there must be a person with the authority to evaluate and decide what further action
should be taken on a complaint, including an investigation. Investigators often refer to this
person as the predicating authority. Making investigative decisions on an ad hoc basis is not a
sound practice and, in fact, could create all kinds of problems and potential liability.

16
Slide #25

Slide #26

17
 Slide #27

The investigator selected will depend on the resources the employer has--and the nature of
the investigation.
It is highly advisable to establish this authority in a policy document approved at the highest level
before the first investigation is undertaken. Often this person is the compliance officer (CO),
human resource manager (HRM), or legal counsel, depending upon the nature of the complaint.
The predicating authority evaluates complaints, allegations, or other information received to
determine whether the allegation would be actionable should the information prove true. Part
of this evaluation is determining any potential liability issues related to the allegations or the
manner by which the investigation would be conducted.

18
 Slide #28

Slide #29

Instructions:
Based on the case study, and the additional information below, decide on the objective of the
investigation, and what plan will your group (via breakout rooms in the virtual environment) will
put into place to move forward. Do this by answering the questions below.

19
Facts:
When you meet with Sylvia and she shares her concerns, the three themes are:
1) She feels that Frank, her boss, hasn’t liked her since she started working for him 3 years ago,
and she suspects it is because she comes from the Midwest, went to a community college, and
he is often vocal about his admiration for prestigious Ivy League graduate hires which matches
his background.
2) Frank has referred to Sylvia as “his girl” in meetings and to other executives. Sylvia believes
she is asked to do the bulk of clerical/administrative tasks in the department, and that her male
colleagues are exempt from doing.
3) There are three incidents where Sylvia says Frank grabbed her from behind knowing it would
startle her and she has screamed. Twice at the copier, and once when he came up behind her in
the lunchroom. She says Frank laughs and tells her she is too uptight and needs to learn to relax.

Questions:
1. What should be the objective of this investigation?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
2. How can the problem be articulated in one or two questions?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
3. What is the benefit to the organization for conducting the investigation into Sylvia’s
concerns?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
4. Who is the Senior Executive over this area, that you will pull in, and make aware of the need
to Investigate?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
5. Who will oversee No Retaliation, and who you will partner with to determine course of
action after the Investigation?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

20
6. What steps do you take to prepare for the investigation?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
7. What is your criteria for selecting an investigator?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

Slide #30

21
 Slide #31

The Five Ways to Collect Data:

• Interviews
• Most widely used
• Phone or in person
• Observations
• Actual performance
• Used with task analysis
• Focus Groups
• Effective, cost-effective method to get information
• Helps generate support for the analysis
• Although focus groups are a way to collect data, although it would not be an
appropriate data collection method for an internal workplace investigation.
• Surveys & Questionnaires
• Anonymous data collection from large numbers of people
• Rapid analysis of results possible

22
Organizational Records / Documents Review
• Examination of documents processed can highlight actual practices
Review each of the following questions with all five methods:
1. What are the benefits of each collection method?
2. What are the drawbacks?
3. When would you use each?

Slide #32

Conducting an interview is the most visible part of an investigation and the step in which you will
spend most of your time.
Because workplace disputes often have personal importance to the employees involved, their
individual perceptions can be shaded.
• Furthermore, since these disputes may impact their livelihood, they may even lie.
• From these differing accounts, employers must investigate and determine what really
happened.
Utilizes most of your competencies as an effective HR practitioner:
• Critical Evaluation
• Global & Cultural Effectiveness

23
 • Relationship Management
• Communication
• Leadership & Navigation
• Consultation
*The role of Unionized Employee Reps attending meetings is to:
• Ask for time to talk in private before the meeting.
• Take notes & record the names, dates questions.
• Attempt to secure "due process" and fair treatment.
• Work to make sure the grievant/interviewee is protected.
• Object to any attempts to anger or frighten the interviewee.
• Call a “timeout” to caucus or recess as needed.
• Ask for questions to be rephrased or explained, as necessary.
• Make no permanent or undo-able decisions at that interview.
• Not impede, interfere in the process of obtaining information.
• Review the company policy for bringing in reps.
Note Taking vs. Stakeholder write-ups
• In certain companies and investigative situations, a note take may be asked to be in the
interview.
• Review the company policy on notetaking.

24
Slide #33

• Meet privately and disclose the complaint.

• Stress that:
• No determination has been made.
• Interference with investigation and/or retaliation is misconduct.
• Review the allegations and obtain accused party’s responses.
• Identify counter-witnesses.
• Elicit opinion as to why complainant might be making allegations.
• Disclosing the complainant's issues to all interviewees is not always necessary. It
should be a need to know basis.
• Show sensitivity toward the interviewee
• Put the interviewee at ease.
• What to watch for
• First-hand knowledge versus hearsay or rumor.
• Credibility & bias.
• Ability to corroborate testimony of others.

25
 • What to do
• Take notes, summarize statements using witness’s own words.
• Have witnesses review and make corrections.
• Signature optional.

Slide #34

There is not clear NLRB guidance on how to ask an employee to keep an investigation
confidential without violating their rights under the National Labor Relations Act. The bottom
line for private employers is, don’t rely on a blanket request or demand for confidentiality in
workplace investigations. Instead, employers should clearly articulate why confidentiality is
necessary in this investigation by focusing on protecting the witness and preventing evidence
destruction, fabrication or cover up.
The most relevant and recent NLRB ruling is The Banner Health System Ruling.
https://www.shrm.org/resourcesandtools/hr-topics/labor-relations/pages/rethink-
confidentiality-requirement.aspx
The ruling states that employers may tell employees not to discuss an ongoing investigation only
when the employer has a "legitimate and substantial business justification" for requesting
confidentiality that outweighs employees' Section 7 rights. What constitutes a legitimate and

26
substantial business justification? The NLRB says such a justification exists only when an
employer can show a likelihood that:
• Witnesses are in need of protection and discussion of the investigation may endanger
them.
• Evidence is in danger of being destroyed.
• Testimony is at risk of being fabricated.
• There is a need to prevent a cover-up.
• Any other comparably serious threat exists to the integrity of an employer investigation
that would be sufficient to justify a confidentiality requirement.
• It is important to note that the NLRB was clear that a general concern of threats to the
integrity of an investigation is not sufficient to warrant a confidentiality requirement.
Employers bear the burden of demonstrating objectively reasonable grounds for
believing that confidentiality is necessary.

Slide #35

• Do not lead the interviewee, i.e., Did you see Bob touch Mary? Versus tell me what you
saw.
• Enter the interview with a series of pre-designed questions and ask follow ups in a
conversational manner.

27
 • When asking repetitive questions, it is not meant to ask the same question a different
way, rather ask a series of related questions.
• If you see a non-verbal sign, inquire; don’t assume (Global and cultural effectiveness).
• Ask simply, do not use compound or complex sentences. The question can be lost.

Slide #36

Key Points
• When we ask questions, we demonstrate to the client that we are interesting in finding
out more
• The questions we ask also signal that we bring expertise, knowledge and skill to the
discussion
• Ask questions that challenge the other person to think and maybe look at the situation
differently
• Consider your intent when asking questions and what you hope to achieve with the
question; don’t ask a question just to ask a question. Ask a question for a purpose.
• When you feel you have enough information, stop asking questions.

28
 Slide #37

Slide #38

Key Points
• This four step model for problem solving can be used to help us ask questions

29
 • Depending on what you hear from the client , you can ask questions from the other
quadrant
• For example, if the client is talking about what they have done, what they are doing or
planning to do, it is often helpful to get them to back up and think about the specific
situation that occurred
• Ask questions from quadrant 1 – What happened? Can you walk me through an
example? How often does this happen? What was the impact when it happened?
• Follow up with questions about how the client analyzed the situation – What do
you think is the reason this happened? Have you ever seen something similar
before?
• Avoid asking questions primarily in the quadrant where you spend time or that fits your
style.

Slide #39

Key Points
• The phrasing of questions matters.
• We can attack and confuse others with poorly worded questions.
• Use wording that is simple and does not include acronyms or HR terms that the client
may not know.

30
 • Avoid putting several questions together.
• A question can be seen as attacking if it starts with “Why” – for example “Why do you
have a higher turnover than other departments?”
• By rephrasing the question in the following ways, you avoid putting up walls and creating
a defensive response.
• “What are some of the factors that you feel may contribute to higher
turnover?”
or
• “What has changed that has impacted turnover in your department?”

Slide #40

Closed Questions – A question that can be answered in one or two words

• Identification questions
• What kind of machine is this?
• Selection-type questions
• Which procedure produced the best results, A or B?
• Yes/No type questions

31
 • Do you understand the steps?
Open Questions - A question that requires more than a few words for an adequate answer.
• Objective and subjective questions
• What happened in this situation?
• Problem questions
• What course of action should be taken at this point?
Key Points
• Use open ended questions to gather information and generate discussion.
• Use closed questions to summarize and confirm understanding.

Slide #41

Key Points
• Active Listening – When we are not only paying close attention but also restating our
understanding of the other person’s point of view, emotions or information, we are using
active listening. When we use active listening, we check to be sure we understood the
message before responding. We also communicate to the speaker that we are listening.

32
 • Attentive Listening – When we are paying close attention and trying to understand the
other person’s point of view, we are passive and listening attentively.
• Selective Listening – When we listen for what we want to or expect to hear rather than
what the person is saying we are practicing selective listening and we run the risk of
missing key information. A variation of Selective Listening is Competitive Listening . Rather
than attempting to understand the other person’s point of view we sometimes focus
exclusively on presenting our point of view. When we are in this listening mode, we plan
our response and look for any opportunity to jump in and make our points.

Slide #42

Key Points
• Many things can get in the way when we are listening.
• These include the environment, our own feelings about the person or topic, our state of
mind, what else is going on.
• We have control over most of these barriers.
• If you are not able to listen, make changes so you can.

33
 Slide #43

Slide #44

More people are working from home given workplace flexibility, technology availability, and for
health and safety reasons during a crisis like the COVID-19 Pandemic.

34
Complaints about bullying, harassment, and off duty wrongful conduct continue and even
increase in remote environments. Remote complaints are often related to the wrongful conduct
via technology – social media, email, texting, and direct messaging platforms.
If an investigation is warranted, there are three pieces of the remote interview puzzle to
consider. They include:
1. Remote Interview Investigator Preparation
2. Preparing the Remote Interviewee
3. Conducting the Remote Interview
Sources:
Segal J. Duane Morris LLP. (2020). Workplace Investigations in the COVID Era [PowerPoint slides].
SHRM Webcasts.
https://www.shrm.org/LearningAndCareer/learning/webcasts/Pages/0520segal.aspx
Villasana, Denis. (2020). Bullying and Harassment Persists Among Remote Workers. Retrieved
from: https://www.thehrdirector.com/features/learning-development/title-bullying-harassment-
persists-among-remote-workers/
Wajert, Emily (2020). 6 Tips for Conducting Workplace Investigations Remotely.
https://www.law360.com/articles/1304993/6-tips-for-conducting-workplace-investigations-
remotely

35
 Slide #45

There are some special considerations for preparing to conduct remote investigations:
• What platform to use
• The best idea is to use the platform you are most familiar with and hopefully the
interviewee is too.
• Getting comfortable with the technology
• Ensure you are comfortable with the platform if you’re not already. You may have
to download the platform initially, etc.
• Physical location of the HR Professional/or other investigator
• Whether the HR professional or an assigned investigator will be conducting the
remote interviews, where they conduct the interview via the platform is
important. You want to choose a place that is:
• Private
• Minimal interruptions
• What will the interviewee see in your environment if you too are remote
from your workplace? Is it distracting or too personal?
• Compensation for the non-exempt employee if the interview is conducted in off-hours

36
 • If you are conducting interviews during off-hours for a non-exempt employee, go
through the necessary payroll process and discuss with the interviewee.
• Practicing the interview
• The more you practice, the smoother the interview will go.
• Practice your opening statement, the questions, and the summary/next
steps/follow-up.
• Appropriate clothing
• The clothing depends on your industry, but a good rule of thumb is the happy
medium – a suit might be intimidating but a t-shirt is too casual – the happy
medium is business casual.
Sources:
Segal J. Duane Morris LLP. (2020). Workplace Investigations in the COVID Era [PowerPoint slides].
SHRM Webcasts.
https://www.shrm.org/LearningAndCareer/learning/webcasts/Pages/0520segal.aspx
Villasana, Denis. (2020). Bullying and Harassment Persists Among Remote Workers. Retrieved
from: https://www.thehrdirector.com/features/learning-development/title-bullying-harassment-
persists-among-remote-workers/
Wajert, Emily (2020). 6 Tips for Conducting Workplace Investigations Remotely.
https://www.law360.com/articles/1304993/6-tips-for-conducting-workplace-investigations-
remotely

37
 Slide #46

Preparing the Remote Interviewee:

• Schedule a preliminary call with the interviewee to give to ease concern, provide details,
and to break the ice.
• Discuss the platform that will be used, ensure the interviewee is comfortable with it, and
help them download the platform if they haven’t done so already.
• Preparing for technical issues - Discuss with the interviewee about what to do should
they get disconnected. An example is if they are on a webcast and the host’s
(interviewer) platform fails, then the host will call the interviewee immediately to
continue the conversation.
• Set expects with the interviewer – No recording, no taping, be in a private setting, don’t
allow others to hear, and agree to be on video.
Sources:
Segal J. Duane Morris LLP. (2020). Workplace Investigations in the COVID Era [PowerPoint slides].
SHRM Webcasts.
https://www.shrm.org/LearningAndCareer/learning/webcasts/Pages/0520segal.aspx

38
 Slide #47

Slide #48

In making this assessment, the predicating authority begins by taking stock of what is known
from the information on hand, including the source of the information — the complainant, the
media, or other sources or indicators. He or she also will determine which of the assertions are
established facts and which are in dispute.

39
Which Documents Should Be Reviewed
• Documents identified by parties or witnesses.
• Company records that may corroborate one side or the other.
• Ask all interviewees for notes taken at any time.
• Personnel files & discipline records of the parties.
Focus first on company records
Precautions with company records
• Restricted access to records (medical, EEO).
• Email and computer records require policy/notice.
• Maintaining confidentiality of records.
Access to non-company records will be limited
• Subpoenas generally not available without suit/charge/motion for pre-suit discovery.
• HIPAA and other privacy concerns will require you to obtain consent forms (e.g.,
telephone records).
• May have to rely on voluntary cooperation by third parties.
• Be careful about workers’ compensation records.
• Privacy concerns
• ADA issues

40
 Slide #49

A teacher at a New Jersey high school, upon discovering respondent, then a 14-year-old
freshman, and her companion smoking cigarettes in a school lavatory in violation of a school
rule, took them to the Principal's office, where they met with the Assistant Vice Principal. When
respondent, in response to the Assistant Vice Principal's questioning, denied that she had been
smoking and claimed that she did not smoke at all, the Assistant Vice Principal demanded to see
her purse. Upon opening the purse, he found a pack of cigarettes and also noticed a package of
cigarette rolling papers that are commonly associated with the use of marihuana. He then
proceeded to search the purse thoroughly and found some marihuana, a pipe, plastic bags, a
fairly substantial amount of money, an index card containing a list of participants who owed
respondent money, and two letters that implicated her in marihuana dealing. Thereafter, the
State brought delinquency charges against respondent in the Juvenile Court, which, after
denying respondent's motion to suppress the evidence found in her purse, held that the Fourth
Amendment applied to searches by school officials, but that the search in question was a
reasonable one, and adjudged respondent to be a delinquent. The Appellate Division of the New
Jersey Superior Court affirmed the trial court's finding that there had been no Fourth
Amendment violation but vacated the adjudication of delinquency and remanded on other
grounds. The New Jersey Supreme Court reversed and ordered the suppression of the evidence
found in respondent's purse, holding that the search of the purse was unreasonable.
The Fourth Amendment's prohibition on unreasonable searches and seizures applies to searches
conducted by public school officials and is not limited to searches carried out by law
enforcement officers. Nor are school officials exempt from the Amendment's dictates by virtue
of the special nature of their authority over schoolchildren. In carrying out searches and other

41
functions pursuant to disciplinary policies mandated by state statutes, school officials act as
representatives of the State, not merely as surrogates for the parents of participants, and they
cannot claim the parent’s immunity from the Fourth Amendment's strictures.

Slide #50

Respondent, a physician and psychiatrist, was an employee of a state hospital and had primary
responsibility for training physicians in the psychiatric residency program. Hospital officials
became concerned about possible improprieties in his management of the program, particularly
with respect to his acquisition of a computer and charges against him concerning sexual
harassment of female hospital employees, and inappropriate disciplinary action against a
resident. While he was on administrative leave pending investigation of the charges, hospital
officials, allegedly in order to inventory and secure state property, searched his office and seized
personal items from his desk and file cabinets that were used in administrative proceedings
resulting in his discharge.
Respondent filed an action against petitioner hospital officials in Federal District Court under 42
U.S.C. §1983, alleging that the search of his office violated the Fourth Amendment. On cross-
motions for summary judgment, the District Court granted judgment for petitioners, concluding
that the search was proper because there was a need to secure state property in the office.
The court held that the record justified a grant of partial summary judgment for respondent on
the issue of liability for the search, and it remanded the case to the District Court for a
determination of damages.

42
 Slide #51

If the calls are recorded or listened to, the parties must be made aware during each call (verbal
script or recording).
The information on the amendment to wiretapping was moved to the email slide.

43
Slide #52

Slide #53

44
 Slide #54

Carpenter v the United States

https://en.wikipedia.org/wiki/Carpenter_v._United_States
(2018) The Supreme Court ruled that the government needs a warrant to access a person's
cellphone location history.
Recent SCOTUS Ruling on Carpenter
https://www.newyorker.com/news/daily-comment/in-carpenter-the-supreme-court-rules-
narrowly-for-privacy
While a criminal case, the court’s analysis will likely apply to civil claims brought under the CFFA,
too. Employers may want to evaluate their computer policies in light of the decision.
Van Buren v. the United States
https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/how-
the-supreme-court-is-shaping-employment-laws.aspx (2021)
Bellagio Hotel v Weingarten Claim – NLRB
https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/court-
report-ignoring-weingarten-right-and-discriminating-against-union-employees-violates-nlra.aspx
(2022)

45
“Me too” Case Examples
Cardin, K., Citron, E. (2022) Ogletree Deakins. #MeToo and the Workplace: Five Years and a
Pandemic Later. Retrieved from: https://ogletree.com/insights/metoo-and-the-workplace-five-
years-and-a-pandemic-later/
• Changes in the past five years since the #MeToo movement began including a
decrease in sexual harassment claims, continued spotlight in the news, and new
legislation (Sexual Assault Arbitration Ban - 2022).
http://time.com/time-person-of-the-year-2017-silence-breakers/
• Miramax Films/Harvey Weinstein
• Uber Engineer, Susan Fowler
• Kelly Martin, Park Service employee
• Crystal Washington, Plaza hotel worker
• Paulette Jordan, State Legislator
BYOD and Privacy Cases (2020)
https://iprotech.com/industrynews/recent-case-law-illustrates-the-importance-of-addressing-
byod/
Recording via a Cell Phone Without Permission (2022)
https://www.guidelinelaw.com/can-i-sue-someone-for-recording-me-without-my-permission/
Google Case (2020)
https://www.washingtonpost.com/technology/2020/09/22/google-employee-surveillance-
lawsuit/

46
 Slide #55

Prior to BYOD, companies provided devices to employees, but they were company owned and a
notice of lack of privacy is issued.
The most common now is to use your own personal device for company business and a policy
needs to be set in place regarding privacy and expectation for searches. BYOD polices specify
when and how an employee and use their personal devices for work purposes.
When employees own the devices and use them to access and store company related data,
performing forensic examinations in support of an internal workplace investigation can become
more complicated due to ownership and privacy issues.
HR in conjunction with legal need to create a policy surrounding devices owned and used by
employees in the workplace.
Organizations need to know if they have the legal right to perform a forensic evaluation on the
device.
Given the rise in remote workers, the policy should include this aspect as well.
Sources:
Born, J., Asner, M. (2020) BYOD Policies and Criminal Investigations: What Happens to Company
Information and Employees When Law Enforcement Seeks Access to Personal Devices (Part I).
Arnold & Porter. Retrieved from:
https://www.arnoldporter.com/en/perspectives/blogs/enforcement-edge/2020/10/byod-
policies-and-criminal-investigations

47
https://www.indeed.com/hire/c/info/bring-your-own-device-
policies?aceid=&gclid=Cj0KCQjwuL_8BRCXARIsAGiC51Dnx0bJ9TwuGYAvh1G4SJH-
C8xeIVUktzYBZZ1Def3_DjAtg_7aYd8aAuDpEALw_wcB (n.d.)
https://www.shrm.org/hr-today/news/hr-magazine/pages/0216-byod-policies.aspx (2016)

Slide #56

The considerations are:

• Qualification & reputation of the investigator
• Scope of investigation
• Type of work product
• Ability to testify & credibility on the stand
• Cost & who pays
• Confidentiality

48
 Slide #57

Instructions:
Based on the case study, and the list of names Sylvia suggests you talk to below, work with your
group (via breakout rooms in the virtual environment) to determine who you will interview and
what questions (questions 1 & 2 below) you will ask them.
Depending on your instructor, this activity will be facilitated in one of the following ways:
1. The role play part of this activity is next. Once your group has developed the list of
questions, the instructor will “act” as the interviewee for each person on Sylvia’s list. The
instructor has already created background information for these people and is prepared
to answer the group’s questions for each one. Before you begin the interviews, answer
questions 4-7, and once complete with the role play, answer question 8.

2. The role play part of this activity is next. Once your group has developed the list of
questions, the instructor will “assign” individuals to be an interviewee for each person on
Sylvia’s list. You are provided with the background information (on the next two pages) to
get into character and to be able to answer the group’s questions. Before you begin the
interviews, answer questions 2-6, and once complete with the role play, answer question
7.

49
Facts:
Sylvia has given you the names of her two male colleagues in her department, Jon and Barry,
who she says have witnessed Frank’s behaviors in the office and in meetings. She also
provided you the name of her good friend, Kris, who works in Accounting, who she has lunch
with each day, and has been her confidant. She thinks you should talk to Frank’s peers, Shirley
and Don, who have heard her being called his girl.

Questions for Facilitation #1

1. Who will you interview?

_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
2. Develop a list of 7-10 questions you would like to ask each interviewee.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

3. How should the interviews be conducted?

_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
4. How will you determine witness credibility?
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________

50
 5. How will you discuss the parameters of confidentiality with the Complainant, the
Witnesses and the Accused?
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
6. How will you assure no Retaliation with the Complainant, the Witnesses and the
Accused and when will you mention it during the interviews?
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
7. What are some tactics you can use to help you detect deception in an interviewee?
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
8. What additional information/ data do you need to gather?
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________

Questions for Facilitation #2

1. Develop a list of 7-10 questions you would like to ask each interviewee.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

51
2. How should the interviews be conducted?
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
3. How will you determine witness credibility?
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
4. How will you discuss the parameters of confidentiality with the Complainant, the
Witnesses and the Accused?
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
5. How will you assure no Retaliation with the Complainant, the Witnesses and the
Accused and when will you mention it during the interviews?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
6. What are some tactics you can use to help you detect deception in an interviewee?
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
7. What additional information/ data do you need to gather?
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

52
Facilitation #2 background information
Sylvia’s Allegations from the prior activity

• She feels that Frank, her boss, hasn’t liked her since she started working for him 3 years ago,
and she suspects it is because she comes from the Midwest, went to a community college,
and he is often vocal about his admiration for prestigious Ivy League graduate hires which
matches his background.

• Frank has referred to Sylvia as “his girl” in meetings and to other executives. Sylvia believes
she is asked to do the bulk of clerical/administrative tasks in the department, and that her
male colleagues are exempt from doing.

• There are three incidents where Sylvia says Frank grabbed her from behind knowing it would
startle her and she has screamed. Twice at the copier, and once when he came up behind
her in the lunchroom. She says Frank laughs and tells her she is too uptight and needs to
learn to relax.

Jon-Sylvia’s colleague

• He likes and respects Sylvia.

• He thinks Sylvia is a bit sensitive.

• He graduated from Yale.

• Sylvia teases him sometimes about Yale and how different it was from her experience at The
Ohio State.

• He thinks everyone gets along well in the department and that Frank is a good manager.

• He has never seen Frank be disrespectful to Sylvia or anyone.

Barry - Sylvia’s colleague

• He recently transferred into Frank’s department and had been warned by former co-workers
that Sylvia is extremely ambitious and hard to get along with.

• Sylvia has been okay to him, but bristles whenever Frank is around.

• Barry feels like he and Jon are becoming good friends, as he has been immensely helpful to
him assimilating into his new role.

53
• Barry can tell that Frank likes him and Jon, as he talks to them a lot and seems very
comfortable with them, but when Sylvia is in a meeting with us, she brings lots of negative
energy, so Frank becomes stiff and super professional.

Kris -Sylvia’s friend in accounting

• She feels she is a good friend of Sylvia’s.

• They got to know each other a couple of years ago when they were on the same Habitat for
Humanity work team, and they now go to lunch together regularly.

• She thinks Sylvia is smart, caring and driven to build a successful career here.

• Sylvia has shared that Frank doesn’t like her. She has shared that Frank has referred to her as
“my girl” in an executive meeting she went to with him, and that he has twice come up
behind her at the copier, grabbed her shoulders and said “Boo,” to startle her.

• Sylvia was recently turned down for the in-house management program and she is convinced
it is because Frank is discriminating against her for being a woman.

Shirley - Frank’s peer on the management team

• Shirley has worked with Frank for many years and thinks he is good at what he does.

• She thinks he is a good manager of people, although she knows he has a staff member
named Sylvia who he’s finding challenging.

• This Sylvia was recently turned down for the management program because as Frank shared,
she doesn’t exhibit the collaboration, strategic thinking and business acumen needed to be at
the leadership table.

• Shirley knows that Frank was worried how she would take being turned down.

• Shirley does not recall Frank ever calling someone his girl and doesn’t know why that could
be offensive anyway.

Don - Frank’s peer on the management team

• He has worked with Frank for four years and thinks he does an “okay” job.

• Don thinks Frank is a bit of a snob about having earned his master’s degree from Harvard and
is tired of him bringing it up so often.

• He hasn’t heard Frank call someone his girl but wouldn’t put it past him.

54
Frank

• He has been a manager here 10 years.

• He has never had a complaint against him and is very uncomfortable having allegations made
about him.

• He says he has never called Sylvia his girl, has never grabbed her from behind to startle her,
and thinks Sylvia has made things up to get back at him for standing in the way of her getting
into the management program.

• He is proud of his Harvard MBA and has found staff with stronger academic credentials
perform better on the job.

• He thinks Sylvia is a loner who doesn’t display teamwork and brings negativity into the
workplace. He told her that she lacks executive presence because he believes she doesn’t
have the skill or demeanor to be at a management table.

Slide #58

55
Slide #59

Slide #60

56
 Slide #61

Standards of Evidence
• Beyond a reasonable doubt
• Clear and convincing evidence
• Preponderance of the evidence
• Good faith investigation / reasonable conclusion
• Issue of investigation supporting a decision that must be held to a higher standard (just
cause process)
• Standards for Investigations
Burden of Proof - The burden of proof is the obligation a party has in a trial to produce a certain
amount of evidence. Once the burden is met, then the outcome or conclusion of the trial favors
the party who had the burden of proof and produced evidence satisfying that burden.
Preponderance of Evidence - In most civil cases, the burden of proof is by a preponderance of
the evidence. What this means is that the standard is met if there is greater than 50% chance
that the something is true or that something happened. Scales start balanced and clear and
convincing evidence (empirical not hearsay) tips in either direction
Beyond reasonable doubt - In a criminal case, a higher standard of proof is required. This is
normally referred to as proving the case beyond a reasonable doubt. This burden is described as

57
proof having been met if there is no plausible reason to believe otherwise. Scales start 100% in
favor or respondent and burden is on plaintiff to tip them in favor of complainant.

Slide #62

Instructions:
Based on the interviews you conducted, and the additional data collected, analyze and validate
your data by answering the following questions. Work with your groups in person or in the
breakout rooms in the virtual environment.
Questions:
1. What data is important, what isn’t?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
2. What specific elements of the complaint were confirmed by more than one person or by other
evidence?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

58
3. Are there explanations for actions/behaviors other than what the complainant believes?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
4. Has a policy, law, rule been broken?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
5. Was the accused aware of the policy, law, rule or should he/she have been?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
6. On what will you base your decision?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
7. Is there any remaining data to obtain?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
8. Would a reasonable person feel there is a preponderance of evidence one way or the other?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
9. Are there any mitigating circumstances?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

59
Slide #63

Slide #64

• State what you mean

• Explain – elaborate on what you mean
• Illustrate it – Give an example, facts, data, and/or story

60
Another method of confirming facts and influencing decisions is to deliver message via the
M.E.A.L. method; Main point (fact received), Evidence (witnessed, saw, experienced; not
hearsay), Analyze (confirm what that meant to interviewee), Link (to policy, procedure, law, work
rule and what the person making the statement desires).

Slide #65

A few tips for making the recommendation to senior leaders include:

• Prepare – Make certain you are fully prepared before presenting to senior leaders using the
guidance in the previous slide.

• Rehearse – Take the time to rehearse your presentation several times. Rehearsing always
makes the presentation better.

• Connect – Connect with the senior leaders before, during, and after the presentation. Bring
your best self forward. Be confident when presenting. You’ve worked hard and made this
recommendation via a thorough investigative process.

• Summarize First – Set expectations from the start by letting the senior leaders know you are
going to summarize the recommendation first and then provide the key points of the
investigation next.

• Be Direct – Be succinct and straight forward, while always keeping the timing in mind.

61
Slide #66

• HR professional needs to determine if the senior most business leader's course of action
would put the company at too much legal, compliance, or reputation risk.
• And/or if he/she isn't being as objective as needed.
• And/or if he/she is creating a new precedent, which isn't in alignment with the company's
mission, vision, and values.
• If the HR person feels it is warranted, he/she may need to go to General Counsel, CEO,
Board of Directors, Owners, or in vary rare cases when a law may be violated, to an
outside agency.

62
 Slide #67

Instructions:
Based on what we know from Sylvia’s case, summarize your results, and develop a
recommendation by answering the following questions. Work with your groups in person or in
the breakout rooms in the virtual environment.

Questions:
1. What will you recommend?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
2. Is discipline appropriate?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
3. Summarize your findings.
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

63
4. What will you cover in the meeting with the most Sr Level Exec and together how will you
determine course of action?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

Slide #68

64
Slide #69

Slide #70

65
 Slide #71

Employer was justified in discharging employee for record of unexcused absences and for failure
to tag materials correctly as required by his job. Employer’s action meets tests for “just cause”
for discharge:
1) Employee was forewarned of consequences of his actions.
2) Company’s rules are reasonably related to business efficiency and performance employer
might expect from employee.
3) Effort was made before discharge to determine whether employee was guilty as charged.
4) Investigation was conducted fairly and objectively.
5) Substantial evidence of employee’s guilt was obtained.
6) Rules were applied fairly and without discrimination.
7) Degree of discipline was reasonably related to seriousness of employee’s offense and
employee’s past record.

66
 Slide #72

A flat "no" answer to one or more questions indicates that the employer's action was arbitrary,
capricious and/or discriminatory in one or more respects, thereby signifying an abuse of
managerial discretion and allowing the arbitrator to substitute his/her judgment for that of the
employer.

67
 Slide #73

Instructions:
Based on your final decision, answer the following questions to determine the corrective actions.
Work with your groups in person or in the breakout rooms in the virtual environment.

Questions:
1. What are other considerations are involved in your decision on corrective actions?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
2. Are changes needed in the work environment, reporting structures, policies, or practices?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
3. What is and how did you determine the just cause for corrective actions? Does the punishment
fit the “crime?”
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

68
4. Who else needs to be involved in ensuring the Corrective Action is effective?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

In a real-world situation, the following three questions should be considered:

• What is the companies stated corrective action process?

___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
• Is this a situation that fits the stated process?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
• Are there any precedents of how similar situations have been treated?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

Slide #74

69
 Slide #75

• IMemo summarizing findings, including:

• Standards of evidence
• Just cause framework
• Create a record to guide the investigation
• Strive to be accurate
• Take care to use quotation marks
• Be discreet in your annotations of documents
• Preserve the record, as memories fade
Before leaving the topic of evaluating the allegations, it may be worth considering that the
allegation on its face may be patently false. This happens more often than one might think.
Sometimes the cover or anonymity may encourage someone to try to use the complaint process
to “get even” with his or her boss or co-worker. The compliance officer or other responsible
parties need to be aware of this possibility. Ironically, the complainant may become the subject
of the investigation, but the investigating officer needs to be sure that he or she has convincing
evidence that the information is false and malicious, and the person made a deliberate false
complaint. The operative word here is “deliberate.”

70
 Slide #76

The Confidential HR Investigation Summary document is in the template section of this

participant guide.

71
 Slide #77

Work with L&D to utilize data as Reusable Learning Object (RLO) related to current training
modules on same topic. Use case to further mitigate risks in the future.
A RLO is a resource, usually digital and web-based, that can be used and re-used to support
learning. A RLO is an independent and self-standing unit of learning content, which is
predisposed to reuse in multiple instructional context.
If the incident did not result in termination; use the info are a documented training opportunity
for all involved.

72
 Slide #78

Instructions:
Based on your findings and corrective actions, determine how your group will apply the findings
to educate and mitigate future risks, by answering the questions below.

Questions:
1. How would you use the data, determination, and corrective actions to mitigate future risks?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
2. How will you check-in periodically to ensure the corrective action was effective?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
3. What communication / training can you provide to prevent this type of situation from arising
in the future.
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

73
Slide #79

Slide #80

74
Slide #81

Slide #82

75
 Slide #83

Slide #84

Instructions:
Answer the following questions to reflect on the course today, and your next steps:

76
Questions to Consider:
1. What did you learn today?
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
2. What parts of this course will you put into practice as soon as you return to the office?
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
3. What areas do you think you need to further develop?
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

Slide #85

77
Slide #86

Slide #87

78
Slide #88

79
Administrative Leave Notice

[Date]
[Employee name]
[Employee address]

Dear [Employee name],

As we discussed today, this is to notify you that you are being placed on administrative leave
effective immediately in accordance with [Policy name].
This administrative leave is to allow the department time to review the following allegation(s)
that [briefly and in general terms describe the allegation].
This investigation will be conducted in a thorough manner and will be kept as confidential as
possible. As a reminder, [Company Name] maintains an anti-retaliation policy that all employees
are expected to adhere to (see attached).
As part of our investigation, we will be scheduling a meeting with you in order to discuss this
matter. Please call or email me with your current contact information so that we may contact you
to schedule this meeting.
If you have any questions related to other work issues or you need to come to the workplace for
any reason during the period of administrative leave, please contact [supervisor name or human
resources] at [telephone number and email address].

Sincerely,

[Name]
[Job title]
[Contact information]
Checklist: Employee Misconduct Investigation

The following list is designed to provide a guideline for conducting a fair and thorough
investigation.

☐ Conduct a thorough interview of the accuser or initial witness asking who, what, when,
where, how and why. Reiterate the need for employee cooperation in maintaining discretion and
ensuring that no one experiences retaliation. However, be aware that overly broad
confidentiality rules can be deemed to unlawfully restrict employees’ rights to discuss terms and
conditions of employment. After reviewing notes, always ask if there is anything else the
complainant wants to add.

☐ Ask the accuser and witnesses to put their claim(s) in writing. Work with legal counsel to
decide whether sworn or signed statements are needed.

☐ Put out the fire first. The more severe the claim or emotions, the more care may be needed
to keep employees separate and/or safe from any further threats, retaliation or harassment
while you investigate. Stabilize the workplace and hold off on discipline until an investigation is
complete.

☐ Decide if it is necessary to place the accused on administrative leave or allow voluntary leave
for the accuser during the investigation. Reinforce the company’s no retaliation policy.

☐ Assess what additional help you need for the investigation. Consult with legal counsel in all
allegations of discrimination, harassment and/or violence.

☐ Identify who you need to speak with and what questions you will ask.

☐ Interview the accused or potentially involved person(s) with a view toward finding out what
happened.

☐ Do not pick sides. Conduct an impartial investigation and interview of all parties.

☐ Re-interview those involved based on new information and evidence.

☐ Keep good notes of interviews, responses, dates/times, efforts, results, actions and refusals.
Assume all documents will be seen by a judge or jury. Avoid gratuitous conclusions and
speculations. Only write what you were told and what you saw.

☐ Assess credibility and resolve factual disputes. Keep secondary performance issues
separate from this investigation.

☐ Create a summary report of the investigation and confirm with senior management and legal
counsel the final course of action.

☐ Make decisions on the action(s) to take with due consideration of past practice. Close the
investigation with those who need to know.

☐ Follow up as needed on the effectiveness of the corrective action. Be alert to retaliation

claims and follow up on them.
☐ If you find there is no probable cause due to one employee’s word versus another, advise the
accused that if a similar issue is raised again, the first incident will be taken into consideration
during the new investigation.
Checklist: Retaliation Prevention

When employees complain about discrimination, harassment, safety or other legally protected
rights, employers must ensure that workers aren't retaliated against for raising these issues.
Use this checklist to ensure practices are in place to limit the risks of retaliation claims.

☐ Ensure non-discrimination and harassment policies cover retaliation and include a strong
anti-retaliation statement.

☐ Establish a complaint process that employees are aware of, understand and can follow
easily. Include an employee hotline to submit complaints anonymously.

☐ Train supervisors on the anti-retaliation policy and procedures.

☐ Designate an individual to regularly review and implement anti-retaliation policies and

procedures, conduct investigations, and provide training.

☐ Audit practices to ensure the company consistently and fairly implements disciplinary action.

☐ Maintain documentation of all employee performance appraisals and disciplinary actions to

document that your practices are fair and not influenced by a complaint of illegal
discrimination or other unlawful employment practice.

☐ Keep comprehensive records of all complaints, investigations, and responses.

☐ Discipline and retrain any supervisors who engage in retaliation.

☐ Identify any existing or potential complaints, assess the circumstances and take actions to
ensure no retaliation occurs.
Grievance Procedures (Non-union)

Purpose
[Company Name] recognizes that there are times when the need arises for employees to
express concerns or complaints in a formal manner. The following procedures will ensure that
nonunion employees receive a fair and unbiased review of workplace concerns.
Employees with union representation should refer to the grievance procedures outlined in the
respective collective bargaining agreement.
Procedures
Step 1: Informal discussion with supervisor
Employee concerns should first be discussed with the employee’s immediate supervisor. Many
concerns can be resolved informally when an employee and supervisor take time to review the
concern and discuss options to address the issue.
Step 2: Written complaint to supervisor
If the employee is not satisfied with the results of the informal discussion in Step 1, the
employee may submit a written complaint within five days to his or her immediate supervisor to
include:

• The nature of the grievance.

• Detailed information including evidence of the issue, witnesses, related policies, etc.
• The remedy or outcome desired.
The immediate supervisor will have five working days to respond to the employee in writing.
If the employee complaint is regarding illegal harassment, discrimination or retaliation, the
employee should submit the written complaint directly to the human resources (HR) department.
Step 3: Written complaint to senior management
If the employee is not satisfied with the response from the immediate supervisor, the employee
may submit a written complaint to senior management for review. A copy should also be sent to
HR. The request for review should include:

• An explanation of the grievance and details of all previous efforts to resolve the issue.
• A copy of the written complaint submitted to the immediate supervisor.
• A copy of the immediate supervisor's written response to the employee’s complaint.
• Detailed information regarding the employee’s dissatisfaction with the immediate
supervisor's response.
Senior management will consult with the employee’s immediate supervisor, HR and any other
relevant parties to evaluate the grievance and provide a written response to the employee within
five days. The outcome of the review by senior management will be final unless new evidence
or other circumstances warrant additional review of the complaint.
Recordkeeping
HR will maintain records of the grievance process confidentially and securely.
Harassment Complaint Form

Name of the Complainant:

Department:
Phone Number:
E-mail:
Today’s Date:

Name of the Accused:

Department:
Relationship of the Accused to the Complainant (manager, co-worker, client, etc.):
Phone Number:
E-mail:

Date of Incident:
(If more than one event, please report each event on a separate form.)

Where did the specific event occur?

Please explain the events that occurred.

How did you react to the situation? Did you take any action to stop perceived
inappropriate behavior?

Describe the harm you have suffered as a result of the event.

Were there any witnesses to this specific event? (If yes, please provide their names.)
Is there any physical evidence that supports your complaint? If so, please describe or
attach copy of evidence.

What is your desired outcome of the investigation?

The information provided in this complaint is true and correct to the best of my knowledge. I am
willing to cooperate fully in the investigation of my complaint and provide whatever evidence
[Company Name] deems relevant.

Signature Date:

Please return this form to Human Resources.

Harassment Complaint Resolution Acknowledgement

Name of Respondent: __________________________________________

Name of Complainant: __________________________________________

Although my signature on this document does not constitute an admission of guilt, I do

acknowledge that the complainant perceived my actions as being offensive. My signature on
this form is my agreement that I will cease-and-desist the actions that are perceived as being
offensive.

________________________________ _________________________
Signature of respondent Date

I am satisfied my complaint has been acknowledged and that actions taken by the respondent
are satisfactory to me.

_________________________________ ___________________________
Signature of complainant Date
Investigation Follow-Up Letter to Complainant

[Date]
Dear [Employee Name]:
This letter summarizes the results of [Company Name]’s investigation into your allegations that
[Accused Employee or Employees] acted inappropriately and/or violated company policy by
[summary of the nature of the complaint].
As we discussed, [Company Name] takes such allegations very seriously and will not tolerate
inappropriate behavior in the workplace. Employees are encouraged to bring such matters to
our attention at any time, without fear of any adverse action being taken against them for doing
so.
As you know, [Accused Employee or Employees] [has/have] been on leave since [date] to allow
us to investigate your complaint. In my capacity as human resource manager, I have
interviewed all the employees involved, including you and [the accused employees], and our
investigation is now complete. Though we could not confirm all of your allegations, it does
appear that inappropriate behavior and violations of company policy took place, specifically in
violation of the [policy] found in the company employee handbook. A copy of that policy is
attached to this letter.
Although privacy considerations limit our ability to share confidential information with you about
other employees, I can tell you that the appropriate action has been taken to ensure that such
conduct does not repeat itself. Should you experience any further problems, please feel free to
let me know or to speak with another trusted member of management. Any future misconduct,
including any retaliation, will be dealt with swiftly and severely as the circumstances dictate.
Please do not hesitate to ask questions or speak up about matters that concern you. If you feel
any form of retaliation occurs, report it immediately, so it can be addressed quickly.
Thank you again for bringing this matter to our attention.
Sincerely,
[name, title, contact information]
cc: file
Investigation Questions for Accuser

Date: _____________________
Name of complainant: ________________________________
Name of investigator: _____________________________
Introduction:
• Thank the employee for their time & cooperation.
• Address the nature of what is being investigated.
• Explain that the matter under investigation is serious and the company has a
commitment/obligation to investigate the claim.
• Explain that no conclusion will be made until all of the facts have been gathered and
analyzed.
• State that any attempt to influence the outcome of the investigation by retaliating against
anyone who participates, providing false information or failing to be forthcoming can be
the basis for corrective action up to and including termination.
Questions:
Who committed the alleged inappropriate behavior?

What exactly happened?

When did the incident occur or is it ongoing?

Where did the incident occur?

How did you react?

Did you indicate to the accused that you were offended or somehow displeased at the time of
the incident?

Who else may have seen or heard the incident?

Have you discussed the incident with anyone?

Do you know whether anyone else has complained about similar incidents involving this same
person? If yes, who?

How has the incident affected you and your job?

Did you seek any medical treatment or counseling as a result of the incident?

Are there any notes, physical evidence or other documentation regarding the incident(s)?

Is there anyone else who may have relevant information?

Do you have any other relevant information?

When did you first learn of the company’s anti-harassment and EEO Policy? (If not aware,
provide a written copy of the policy and note below).
Investigation: Questions for Witnesses

Date: _____________________
Name of witness: ________________________________
Name of investigator: ___________________________
Introduction
• Thank the employee for his or her time & cooperation.
• Address the nature of what is being investigated.
• Explain that the matter under investigation is serious and the company has a
commitment/obligation to investigate the claim.
• Explain that no conclusion will be made until all of the facts have been gathered and
analyzed.
• State that any attempt to influence the outcome of the investigation by retaliating against
anyone who participates, providing false information or failing to be forthcoming can be
the basis for corrective action up to and including termination .
Questions
Please describe any inappropriate or offensive behavior that you have experienced or
witnessed. What did you see or hear? When did this occur? How often did it occur?

Are you aware of behavior by the accused toward the complainant or toward others in the
workplace?

What did the complainant tell you? When did he or she tell you this?

Do you know if the complainant reported the concern to his or her supervisor?

Upon knowledge of the incident(s), did you report it to your supervisor?

Do you have any notes, physical evidence or other documentation regarding the incident(s)?

Do you know of any other relevant information?

Are there other persons who may have relevant information?
Investigation Summary Report

Date investigation was opened:

Investigator(s) name(s):

Name, title and department of accused:

Description of the allegation (include names, location of incidents, times, dates):

Name, title, department of accuser(s):

Interview timeline (include dates and times of interview, location of interview, names of
everyone present). Attach interview notes.

Summary of evidence that confirms or denies allegation:

Applicable employer policy (or policies):

Recommended actions for employer to take:

Actual actions taken by employer:

Date accuser was notified of actions taken:

Date accused was notified of actions that will be taken:

Other post-investigation follow-up conversation(s) (include dates, names and topics of

discussion). Attach relevant meeting notes.

Date investigation was closed:

 SAMPLE FACTUAL SUMMARY OF OFFICE OF INVESTIGATION
REPORT - DISCRIMINATION

PREDECISIONAL INFORMATION - NOT FOR RELEASE

WITHOUT APPROVAL OF DIRECTOR, OE

SUMMARY OF OFFICE OF INVESTIGATIONS (OI) REPORT NO. 5-1999-001 Rev. #

OI Report No. X-YYYY-XXX involves a Supervisor of Operations (Supervisor) at the Alpha

Nuclear Plant, who was transferred to a less-desirable, non-managerial position by licensee
management for allegedly raising safety concerns. Pursuant to 10 CFR 50.7, discrimination by
the licensee against an employee for raising safety concerns is prohibited.

Element 1: Did the Employee Engage in Protected Activity?

[Describe the specific evidence supporting a conclusion that the employee engaged in
protected activities, e.g., “The Supervisor testified that he raised numerous nuclear safety
concerns to the Manager of Safety and Quality Assurance, as well as other managers at the
Alpha Nuclear Plant. His testimony is corroborated by plant documents which establish that the
concerns were formally raised. The managers admitted to OI that the Supervisor raised
concerns. The concerns involved safety-related functions performed by quality systems
engineers, including [Be as specific as possible].”]

Element 2: Was the Employer Aware of the Protected Activity at the Time of the Adverse
Action?
[Describe the evidence supporting a conclusion that specific Licensee personnel who served in
a supervisory or managerial capacity were aware that the employee engaged in protected
activities, e.g., “The Supervisor created documentation of his safety concerns to management
in early December, 2005, and testified that he verbally related his concerns to management at
the same time. During OI’s investigation, the Manager of Safety and Quality Assurance and
other managers at the Alpha Nuclear Plant testified that as of December 15, 2005, they were
aware that the Supervisor had raised nuclear safety concerns.”]

Element 3: Was an Adverse Action Taken Against the Employee?

[Describe specifically what action was taken against the employee; indicate whether such action
occurred after the employee engaged in protected activities; and describe why the action was
adverse to the employee, e.g., “On January 10, 2006, the Manager of Safety and Quality
Assurance notified the Supervisor that he was being reassigned to a non-managerial position in
the Licensee’s training division, which is outside the Licensee’s compliance monitoring
organization. This action took place approximately one month after the Supervisor had raised
the safety concerns described above. The evidence indicates that the position to which the
Supervisor was transferred had no supervisory responsibilities, and was generally considered a
less desirable position than the Supervisor of Quality Systems.”]

Element 4: Was the Adverse Action Taken, at Least in Part, Because of the Protected
Activities?
[Describe specifically the evidence supporting a conclusion that there was a causal connection
between the protected activities and the adverse action. Include an analysis of reasons
proffered by the Licensee, if any, that the adverse action was taken for legitimate, non-
prohibited reasons, e.g., “The evidence indicates that the Manager of Safety and Quality
Assurance told the Supervisor that he was causing a lot of problems for the Licensee, and that
if the Supervisor did not stop causing problems by raising safety issues, he would be replaced.
One manager testified during the investigation that some managers at the Alpha Nuclear Plant
viewed the Supervisor as an aggravation and barrier to getting things done. This manager told
OI that it appeared to him that certain managers at the Alpha Nuclear Plant could not dissuade
the Supervisor from raising concerns, so they took care of the Supervisor by transferring him to
a non-managerial position outside the Licensee’s compliance monitoring organization.
Accordingly, the evidence supports the conclusion that the Supervisor was transferred from his
managerial position within the Licensee’s compliance monitoring organization to a less-
desirable, non-managerial position in the training division at least in part because the
Supervisor had raised safety concerns that were viewed by management as erecting barriers to
getting things done at the Alpha Nuclear Plant.

Further, there do not appear to be legitimate business reasons for transferring the Supervisor to
the training position. Several managers at the Alpha Nuclear Plant, including the Manager of
Safety and Quality Assurance, testified that the Supervisor was technically very competent.
Therefore, it does not appear that the Supervisor was transferred to a non-managerial position
for cause. Based on OI’s interview of the Licensee’s Manager of Training, the Supervisor was
not transferred to the training division to fill a critical need within that division. Furthermore, the
Supervisor had received good performance appraisals during the years prior to his transfer to
the training division. While some managers at the Alpha Nuclear Plant stated to OI that they
had heard that the Supervisor was having problems dealing with certain individuals at Alpha
Nuclear Plant, many managers stated to OI that they personally were not having problems with
the Supervisor. In addition, there was no documentation of problems the Supervisor may have
experienced relating to inter-personal relationships.”]

Conclusion
[Indicate whether the staff believes that, based on all available evidence, there is information
sufficient to provide a reasonable expectation that a violation of Section 50.7 (or analogous
requirement) can be shown by a preponderance of the evidence, e.g., “The evidentiary record
outlined above supports a conclusion that the Supervisor was retaliated against by
management for engaging in protected activities. OGC has advised that there is sufficient
information to provide a reasonable expectation that a violation of Section 50.7 can be
established by a preponderance of the evidence.”]

2
0121345ÿ7389 ÿ ÿÿÿ

811 !"!1#$%&'1(&("1("11((!) 713

0121345ÿ7389 ÿ ÿÿÿ

811 !"!1#$%&'1(&("1("11((!) 313

Workplace Conduct Investigations Policy

Purpose

The purpose of this policy is to provide guidance for conducting internal investigations of alleged
unlawful discrimination, harassment and other violations of company policies, rules and
standards of conduct.

Applicability
All [Company Name]-operated sites in the United States.

Policy

This organization is committed to ensuring that all company-initiated investigations are

conducted in a fair, impartial, thorough, thoughtful manner and in compliance with all applicable
laws within the United States.

Procedures

Whenever an agent of [Company Name] (i.e., officer, manager, supervisor) receives a complaint
or other information indicating a possible violation of law or [Company Name] policy, [Company
Name] will conduct an investigation.

Responsibility

[Company Name] will promptly initiate an appropriate investigation into all possible violations of
law and [Company Name] policy. The vice president of human resources (HR) or the HR
department designee will have primary responsibility for investigating complaints relating to
employee misconduct.

In certain situations, the legal department may assume responsibility for certain investigations
and instruct other [Company Name] personnel to gather information for the investigation. In
such cases, the assigned investigator(s) will follow counsel’s instructions relating to
communications and evidence to ensure that “attorney-client” and “attorney work product”
privileges are preserved.

Situations to be investigated

The following list, while not all-inclusive, provides examples of the types of situations that
[Company Name] will investigate:
• Alleged conduct that potentially deprives a company employee or third party (i.e.,
customer, persons or entities desiring to engage in business with the company) of rights
because of race, color, religion, sex, sexual orientation, national origin, age, disability,
marital status or other characteristics protected by law.
 • Alleged verbal or physical conduct that potentially denigrates or shows hostile feelings
toward any individual because of race, color, religion, sex, sexual orientation, gender
identity or expression, pregnancy, age, national origin, disability status, genetic
information, protected veteran status, or any other characteristic protected by law. This
includes conduct that has the purpose or effect of any of the following:
o Creating an intimidating, hostile or offensive work environment.
o Unreasonably interfering with an employee’s work performance.
o Affecting an individual’s employment opportunity at the company.
• Alleged conduct or intentional behavior that potentially violates [Company Name] policy
or affects the safety or well-being of fellow employees, visitors, operations or other
[Company Name]-related activities. Such conduct includes threatening communication,
physical injury or potential physical harm to another, aggressive or hostile action,
intentional damage to company property, and possession of any weapon, regardless of
government licensing.
• Claims relating to unfair labor practices.
• Conduct that violates [Company Name] rules, policies or standards of conduct or the
law.

Third-party investigator requirements

The vice president of HR or the HR department designee will approve the retention of any third
party for purposes of conducting a [Company Name]-initiated investigation regarding employee
misconduct. The third party must be professionally licensed if required by state statutory
requirements and must provide evidence of professional liability insurance (i.e., errors and
omissions coverage) prior to conducting any company-initiated investigation.

Confidentiality

[Company Name] investigator(s) will inform the complainant(s) that the [Company Name]-
initiated investigation will be handled on a need-to-know basis; however, if information is
learned that personnel action or legal action is required, there is a potential that disclosure of
this information may occur in the process.

Retaliation

[Company Name] prohibits retaliation including making threatening communication by verbal,

written or electronic means against any individual who reports or provides any information
concerning unlawful discrimination, harassment or other violations of company policies, rules
and standards of conduct. Any employee found to be engaging in retaliation will be subject to
disciplinary action up to and including termination.

Risk assessment
[Company Name] investigator(s) will make a reasonable effort to ensure that the complainant(s)
or person(s) providing information during an investigation are not exposed to any threats of
violence, intimidation or personal risk. If any such situations are identified or have occurred,
[Company Name] will proceed with the appropriate response, as advised by the HR department,
legal department, security department or other professionals. Any [Company Name] employee
found to have engaged in threatening behavior will be subject to disciplinary action up to and
including termination, in accordance with [Company Name]’s workplace violence prevention
policy.
Administrative leave
Subjects of the investigation may be placed on [paid/unpaid] administrative leave during the
investigatory process as deemed appropriate by the vice president of HR and/or legal counsel.
Administrative leave procedures are outlined in a separate company policy.

Investigative timeline

[Company Name] will make all reasonable efforts to initiate an investigation into the allegation(s)
and conclude the investigation in a timely fashion, as appropriate.

Investigative tasks

The following steps should be undertaken as appropriate for the particular investigation:

Step Action

1. Obtain verbal and written statements from all parties involved, including the
complainant and accused. Secure all publicly available reports from police or other
agencies concerning the reporting (if applicable).

2. Take photographs/video of any injury or damage (if applicable).

3. Preserve all evidence and secure the evidence in a locked location. Document all
evidence obtained. The [Company Name] investigator will be responsible for
maintaining the chain of custody for the evidence.

4. Determine if there is a potential for risk occurrence. If there is a potential, take all
measures appropriate to protect employees, visitors and property.

5. Complete an investigation report, and provide all relevant and necessary

information, including findings.

Documentation of findings

Based on the investigation, [Company Name] investigator(s) should determine whether the
allegation(s) were founded, unfounded or inconclusive. This determination should be
documented in writing and made part of the investigative report. The determinations are as
follows:
• Violation found. Where a violation of [Company Name] policies, workplace rules or law
is found to have occurred, the accused should be notified of the finding and of the
specific or corrective actions to be taken. The accused employee’s supervisor will also
be notified if appropriate. No details about the nature or extent of disciplinary or
corrective actions will be disclosed to the complainant(s) or witness(es) unless there is a
compelling reason to do so (e.g., personal safety).
• No violation found. In this situation, the complainant and the accused should be
notified that [Company Name] investigated the allegation(s) and found that the evidence
did not support the claim.
• Inconclusive investigation. In some cases, the evidence may not conclusively indicate
whether the allegation(s) was founded or unfounded. If such a situation occurs, the
notification to the complainant and the accused should state that [Company Name]
completed a thorough investigation but has been unable to establish the truth or falsity of
the allegation(s). [Company Name] will take appropriate steps to ensure that the persons
involved understand the requirements of [Company Name]’s policies and applicable law,
and that [Company Name] will monitor the situation to ensure compliance in the future.

Retention of investigative records

Unless advised otherwise by the legal department or the HR department, [Company Name] will
retain records relative to a [Company Name]-initiated investigation for the greater of a period of
five years or the minimum retention period required by law.

Release of investigative records

[Company Name] will not release any investigative files, including interviews and findings,
unless authorized by the HR department or the legal department or pursuant to a court-
authorized request (i.e., subpoena, court order).

Any information obtained and reported by third parties employed or engaged by [Company
Name] concerning an employee’s credit worthiness, credit standing, credit capacity, character,
general reputation, personal characteristics or mode of living will be considered to be a
“consumer report” under the Fair Credit Reporting Act. Accordingly, [Company Name] will
provide notice to the employee that such reports have been received. The employee may
request and obtain a copy of the consumer report.

Notice to government agencies

Before notifying any government agency concerning a [Company Name]-initiated investigation,

the legal department will conduct a full review of the investigation and will determine what
information, including documents, should be released to the government agency. Examples
may include state licensing agencies or immigration officials when terminating foreign
employees.

Disclosures to third parties

No [Company Name] employee or agent may make any disclosure to third parties (e.g.,
lawyers, investigators, insurance representatives, media reporters) regarding the particulars of
any [Company Name]-initiated investigation without prior approval from the legal department.
 SHRM: Providing Guidance & Support Through COVID-19
Knowledge Center - 800.283-SHRM (7476)

Taking Care SHRM COVID-19 Resource Center

Mind/body self-care and
caring for others
SHRM’s Ongoing Monitoring
Commitment to monitor,
assess, and provide
updated information
SHRM developed & curated
information on evolving events
https://www.shrm.org/Resources
AndTools/Pages/communicable-
Supporting diseases.aspx
the HR
Community Pertinent Legislation
Updates of federal, state and
local laws related to COVID-19

© 2020 SHRM. All Rights Reserved

 SHRM Education Offerings

SHRM Educational Programs

Creative
Specialty Credentials Engaging

People Manger Qualification (PMQ)

On-Site Team Training Innovative

Applicable
eLearning
1
 SHRM Education Offerings

40+ Live SHRM Eight SHRM People

Educational Manger On-Site Team Self-Paced and
Specialty
Programs Qualification Training On Demand
Credentials and
Including: (PMQ) eLearning
Growing

Cert Prep
and
Essentials Applicable
2
 SHRM Programs

Coaching Communication
Business Candidate Change Conflict
CA HR and to Influence Compensation Compliance
Acumen Interviews Management Mediation
Mentoring Leadership

HR HR
Consultation Data Elevating Employee Employee Employment Essentials
Business Department
Solutions Performance Engagement Relations Visas of HR
Partners of One

People
Inclusive Learning Manager
Organizational People People Resilient SHRM
Workplace Investigations & Qualification
Development Analytics Strategy Teams Cert Prep
Culture Development (PMQ)

Strategies for Understanding US

SHRM CP SHRM SCP Talent Total Workforce
Power Prep Power Prep Storytelling Leadership Acquisition Rewards
the HR Employment
Planning
in HR Professional Immigration