The following article was authored by our colleagues, Alissa Oduro, Mike Tontillo, and Sean McKinley.  Alissa, Mike, and Sean clerked for KWW during the summer of 2020.  All three will be joining KWW as attorneys upon completion of law school and passage of the Ohio bar exam.  Their article first appeared in the December, 2020 issue of the AWI Journal, the quarterly publication of the Association of Workplace Investigators.  

With the permission of the AWI Journal, we are distributing this article to clients and friends of KWW as we believe that this article provides timely information and practical advice to employers regarding recent case law related to workplace investigations.  As part of our workforce management practice, KWW professionals regularly assist employers with such investigations … by serving as outside investigators and by assisting with those who conduct investigations on an internal basis with our training programs as well as regular day-to-day advice.  We are very proud of Alissa, Mike, and Sean for their publication of this article on such an important topic to such a broad audience.

 

 

Workplace investigators know all too well how hard it is to honor their charge to perform consistently accurate, thorough, and lawful investigations. As if the difficulty and the pressure involved in executing proper investigations weren’t enough, the legal landscape within which investigations are conducted is continually changing.

Two guiding hallmarks established decades ago in the Cotran case[i] and its progeny remain: effective investigations should be conducted reasonably well and in good faith. Offering help and direction for both investigators and those who hire them, this article has extracted three additional investigation-related takeaways that legal authorities have recently emphasized.

  1. Investigate rumors, but be mindful that a formal investigation is not always necessary.
  2. Assign formal investigations to an unbiased, trained, experienced investigator.
  3. Review policies on confidentiality warnings in ongoing investigations; these are now permissible in some states and cases.

Determine Whether Rumors Warrant Investigation

Deciding whether or not to investigate is particularly difficult when the catalyst for a complaint is a rumor, which can play an important but limited role in workplace investigations. A serious rumor is often enough to launch an investigation or to steer it in a certain direction. However, employers should never take action against an employee based on an unsubstantiated rumor without first investigating its veracity.

The case of Lunneborg v. My Fun Life[ii] presents a cautionary tale. In that case, the sole shareholder of a marketing company confronted his chief operating officer about a rumor that he was performing consulting work for a rival company on the side. Instead of investigating, the employer demanded that the employee immediately resign or be terminated. When the issue went to court, the shareholder’s version of events was exposed as false. Further, the employer had no documentation demonstrating that the rumors had ever been investigated. In this case, the employer should at least have launched an informal investigation before taking disciplinary action.

Not all rumors warrant investigating, however. Bain v. Wrend,[iii] for example, featured an antagonistic workplace dynamic between a superintendent and a teacher that arose after the superintendent was promoted to a position the teacher had wanted. After learning that the teacher had spoken disparagingly about her during a meeting with other teachers, the superintendent accused him of having an improper relationship with a student and called for a formal investigation. However, the investigation did not produce any evidence of this claim. In truth, the superintendent’s only basis for the allegation was because the teacher once bought the student pizza. The court determined that the investigation was unwarranted and had been used to retaliate against the teacher. As a practical pointer, the superintendent might have informally asked a few questions about the source of the rumor before a full-scale investigation was launched in a way that could potentially tarnish the employee’s reputation without any factual basis.

Choose Unbiased, Experienced Investigators

The adequacy of an investigation can potentially hinge on whom the employer chooses as investigator. For the sake of ease or economy, an employer may be tempted to select an investigator with flimsy credentials or who already has some familiarity with the parties. However, as Jameson v. Pacific Gas & Electric Co.[iv] illustrates, picking an experienced, neutral, and unbiased investigator can be critical.

In Jameson, the defendant-employer hired an experienced lawyer to investigate a complaint regarding workplace retaliation against an employee who reported safety violations. When the investigator concluded that no retaliation had taken place, the employee attacked the investigation, claiming the process itself had been unfair. The court underscored that the investigator had extensive experience, had interviewed 10 witnesses and provided reasons for not interviewing several more, and had produced a detailed report with her analysis and conclusions. It also noted the employee had been directed to speak to the investigator early in the process. Even though the investigator had conducted investigations for this employer in the past, the court found she could properly be deemed a neutral party and that her investigation was both thorough and fair.

Critical oversights or mistakes may also invalidate an investigation. Such oversights were made in Lietz v. State ex. rel. Dep’t of Family Services.[v] In that case, the employer received a tip that an employee was abusing the employer’s daycare benefits policy. Rather than hire an experienced outside entity to handle the investigation, the employer assigned the task to the employee’s direct supervisor. The supervisor’s investigation uncovered that the employee had been receiving benefits for days that she had been absent, resulting in an $196.95 overpayment. However, the supervisor reached this conclusion without first hearing the employee’s side of the story. The employee sued, claiming the overpayment was an innocent mistake and that the investigation had been unfair, since she was never afforded an opportunity to explain. The court found in favor of the employee, ordering her reinstatement based solely on this investigatory oversight. Despite overwhelming evidence that the employee had falsified records of her benefits, the court stated that her input should have been sought before concluding that her actions were intentional and deliberate fraud. The necessity of offering employees under investigation notice of the charges against them and the opportunity to refute them cannot be overstated—even where all other evidence points to one conclusion.

A similar pitfall occurred in Kramer v. Wasatch County Sheriff’s Office.[vi] That case involved a police officer who alleged that her supervising sergeant had engaged in an escalating pattern of harassment and sexually hostile conduct, culminating in rape. In response to these allegations, the sheriff did not seek an outside, neutral, or experienced party to conduct the investigation, but delegated the task to a detective—later admitting that the detective “was the unfortunate guy that was on-duty on that particular day.” When the detective concluded that no wrongdoing had occurred, the officer filed a lawsuit raising multiple claims, including a charge that the sheriff’s office failed to reasonably investigate her sexual harassment, rape, and retaliation allegations. The investigator did not explore the claims with the employee, focusing instead on an alleged affair unrelated to the parties involved. The court agreed that the investigation was inadequate, noting that the detective had no training or experience in investigating sexual harassment claims and had known the alleged harasser for more than a decade, even considering him a mentor. In addition, the county’s harassment procedures were not known or communicated to the detective. The detective was not an appropriate choice for this important investigatory task.

Before employers delegate investigation-related duties to their own employees, it is absolutely necessary that they first receive adequate training and guidance. Otherwise, the employer may run into problems such as those in EEOC v. Boh Bros. Constr. Co. LLC.[vii] In that case, the court determined that the employer had provided little guidance on how to investigate, document, or resolve sexual harassment complaints—instead offering only five minutes of sexual harassment training per year. As a result, the employees appointed to investigate a sexual harassment complaint conducted only “a belated and cursory twenty-minute investigation,” during which no notes were taken and the complainant’s questions were ignored. Because this did not constitute an adequate, prompt, and thorough investigation, the employer was held liable for its supervisor’s misconduct.

Vandegrift v. City of Philadelphia[viii] further highlights the gap in competency between trained and untrained investigators. To help highlight the insufficiency of her employer’s investigation, which had been conducted by a group of untrained and inexperienced employees, the plaintiff recruited a professional workplace investigator to testify as an expert witness. The investigator detailed all of the investigation’s deficiencies, including the failure to investigate all possible claims, failure to interview several potentially important witnesses who did not work for the employer, and the failure to make credibility findings. The investigator also referenced the “unreasonably brief and shallow” questioning in the interviews and called into question the decision to use a team of investigators instead of one individual. The court, acknowledging the weight of this expert testimony, found in the plaintiff’s favor.

Reconsider Confidentiality Admonitions

In December 2019, the National Labor Relations Board (NLRB) issued a decision in Apogee Retail,[ix] significantly expanding an employer’s ability to implement policies requiring employee confidentiality during ongoing investigations. In Apogee Retail, the NLRB declared that for private sector employers covered by the National Labor Relations Act, these types of confidentiality policies are now presumptively lawful and that case-by-case analysis is no longer necessary.[x]

Obviously, maintaining confidentiality is a critically important component of conducting accurate and sufficient workplace investigations. However, requirements about confidentiality, if overly stringent, may be seen as unreasonably restricting an employee’s Section 7 rights under the National Labor Relations Act. To illustrate, imagine a policy requiring all employees who have information relevant to any workplace investigation to maintain complete secrecy before, during, and after the investigation, regardless of circumstance. Such a policy might be regarded as inappropriate, because it would prevent employees from discussing the underlying workplace issues that often prompt these investigations, restricting their ability to self-organize.[xi]

In its earlier decision in 2015, Banner Estrella Medical Center,[xii] the NLRB sought to strike a balance between these competing interests. The employer in Banner Estrella had a written policy requiring its employees to maintain complete confidentiality regarding all ongoing investigations. The NLRB struck down the employer’s policy, finding this restrictive blanket confidentiality requirement unlawful. Instead, in Banner Estrella, the NLRB placed the burden on employers to weigh these competing interests on a case-by-case basis in order to determine exactly how much confidentiality is legitimately necessary to preserve the integrity of each particular investigation.

However, many employers found it burdensome to provide case-by-case justification for requesting confidentiality because these requests are typically prophylactic or precautionary and are less often motivated by any particular case-specific concern.[xiii]

Motivated in part by these practical difficulties, the NLRB reversed course in Apogee Retail.[xiv] Now, requiring confidentiality during an ongoing investigation is presumptively lawful for many private employers. An employer that wants confidentiality protections to continue after an investigation has concluded, however, must provide a case-specific justification for its decision in the exact manner Banner Estrella previously required.

 

 

AUTHOR BIOS

Alissa Oduro is a third-year law student at the University of Akron School of Law. In 2019, she was elected president of the Black Law Student Association and Student Bar Association Representative for the Spring Start Class of 2020. She has been a law clerk with Kastner Westman & Wilkins, LLC, a firm in Akron, Ohio, representing employers in labor and employment law, workers’ compensation, and employee benefits, since the summer of 2019. She can be reached at aoduro@kwwlaborlaw.com.

Mike Tontillo is a third-year law student at the Ohio State University Moritz College of Law. He has  spent the last two summers working as a law clerk at Kastner Westman & Wilkins. In addition to his studies, he competes on Moritz’s national moot court team and is a member of the University’s Labor and Employment Law Association. He can be reached at mtontillo@kwwlaborlaw.com.

Sean McKinley is a third-year law student at the Ohio State University Moritz College of Law. Before joining Kastner Westman & Wilkins in the summer of 2020, he worked in the Office of the City Attorney’s Zone Initiative. At Moritz, he is involved in the Students for Sensible Drug Policy and the Black Law Student Association and is on the Diversity Committee of the Student Bar Association. He can be reached at smckinley@kwwlaborlaw.com.

Margaret A. Matejkovic, of counsel at Kastner Westman & Wilkins, and Linda S. Wilkins, of PositivelyHR, LLC, provided oversight and assistance in preparing this article.

[i] Cotran v. Rollins Hudig Hall, 948 P.2d 412 (1998).

[ii] Lunneborg v. My Fun Life, 421 P.3d 187 (2018).

[iii] Bain v. Wrend, 5:15-CV-202, 2020 WL 1316660 (D. Vt. Mar. 20, 2020).

[iv] Jameson v. Pac. Gas & Elec. Co., 16 Cal. App. 5th 901 (2017).

[v] Lietz v. State ex rel. Dep’t of Family Servs., 2018 WY 127 (Wyo. 2018).

[vi] Kramer v. Wasatch Cty. Sheriff’s Off., 743 F.3d 726 (10th Cir. 2014).

[vii] EEOC v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013).

[viii] Vandegrift v. City of Philadelphia, 228 F. Supp. 3d 464 (E.D. Pa. 2017). [Note that  the case was decided by a summary judgment rather than a conclusion about liability.]

[ix] Apogee Retail LLC d/b/a Unique Thrift Store, 368 N.L.R.B. No. 144 (2019).

[x] Nat’l Lab. Relations Act, 29a U.S.C. §§ 203.1-203.77 (1946).

[xi] See Costco Wholesale Corp. and Teamsters Loc. 592, Int’l Brotherhood of Teamsters, 366 N.L.R.B. No. 9 (2018).

[xii] Banner Health Sys. d/b/a Banner Estrella Med. Ctr., 362 N.L.R.B. No. 1108 (2015).

[xiii] See e.g. Dish Network LLC, 365 N.L.R.B. No. 47 (2017) and Costco Wholesale Corp. and Teamsters Local 592, Int’l Brotherhood of Teamsters, 366 N.L.R.B. No. 9 (2018) (the NLRB held in both cases that the employers had violated their employees’ Section 7 rights due to an inability to provide adequate justification for why they required confidentiality amid an ongoing investigation).

[xiv] Apogee Retail LLC d/b/a Unique Thrift Store, 368 N.L.R.B. No. 144 (2019).

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