Transcript Document
2014 Territorial Human Resources Conference Internal Investigations
Internal Investigations
Topics for today’s session:
• Why we investigate • When we investigate • The Salvation Army investigation process • How to complete Salvation Army investigation forms
What are the most common types of internal investigations?
• • • Discrimination Harassment Misconduct
Why Investigate?
• Under the Title VII, the ADA, ADEA, and OSHA employers are legally obligated to investigate complaints (harassment, discrimination, retaliation, safety, and ethical) in a timely manner. “Timely manner” is known as “prompt remedial action” to the courts.
Why Investigate?
• Identifies and resolves internal problems • Promotes confidence that management is committed to the organization’s policies • Ensures TSA’s commitment to provide an atmosphere in which all employees are treated with dignity, decency and respect
Prompt Remedial Action
The courts and the EEOC understand “remedial action” to mean that the employer: • Undertook a timely and thorough investigation.
• Made a decision based upon factual information.
• • Took appropriate corrective action.
Followed up to ensure the behavior is not repeated.
What If I Don’t Investigate?
Failure to investigate claims of harassment or discrimination could result in serious consequences: • Increased damages awarded to the complainant • Failure to establish a firm defense in the litigation process • • Failure to protect others from similar behavior Failure to identify false charges, which could lead to employer liability • Poor employee morale
Can I Avoid Complaints?
Be Proactive!
• Know the policies.
• Educate employees and managers.
• Enforce the policies.
Know the Policies
3.2
Anti-Discrimination
The Salvation Army will provide equal opportunity for employment as outlined in the “National Statement by The Salvation Army Regarding Equal Employment Opportunity,” see Section 1.5); this includes a working environment free from discrimination . The Salvation Army strives to create and maintain a work environment in which all individuals are treated with dignity, decency and respect . The work environment should be characterized by mutual trust and the absence of intimidation, oppression and/or exploitation . In addition, The Salvation Army expects that all relationships among persons in the workplace will be business-like and free of bias, prejudice and harassment.
Know the Policies
3.3 Anti-Harassment
The Salvation Army has an anti-harassment policy in place in order to maintain a working environment free from harassment of any kind. The purpose of this policy is to define harassment, provide procedures for the investigation of harassment claims , and ensure that violations are remedied fully , in order to maintain a working environment free from harassment.
Know the Policies
3.3 Harassment
“Harassment” – verbal or physical conduct that belittles or shows hostility toward an individual or conduct that creates an intimidating, hostile, or offensive working environment for an individual because of his/her sex, race, color, religion, national origin, age or disability . Types of harassment may include, but are not necessarily limited to, epithets, slurs, jokes, or other inappropriate verbal or physical conduct. For the purposes of this policy, harassment is inclusive of “sexual harassment”.
“Sexual Harassment” -- unwelcome physical contact, sexual advances, requests for sexual favors and other inappropriate communications or verbal or physical conduct of a sexual nature that creates an offensive or hostile work atmosphere.
Sexual harassment includes, but is not limited to:
Know the Policies
14. Progressive Discipline (Misconduct)
• • • • Fraternization with current clients, former clients, or a client’s relative of any Salvation Army social service programs.
Falsification of any work, personnel, or other Salvation Army records, including time card records; Unauthorized use or removal of Salvation Army property Unauthorized taking of Salvation Army funds charges against a Salvation Army account; or unauthorized
Educate Managers and Employees
• Hold regular employee meetings to review policies on harassment, discrimination, ethics as well as general office policies and procedures.
• Update and distribute the appendix to the Workers Together Manual regularly.
• Include harassment and discrimination policies in New Employee Orientation meetings for employees and new officers.
Enforce the Policy
• Zero tolerance for “off color” jokes and “inappropriate” language.
• Enforce policy consistently.
• Be alert – don’t ignore danger signals.
I’ve Received a Complaint!
Now What?
Scenario
Debra, an accountant at Jones Brothers, turned 50 last week. Her co-workers threw a party at the office complete with a coffin shaped cake and black balloons. A few days later, Mike, the Finance Director, asked when she was retiring. Debra replied, “Not for a long time – I have years left! No need to talk about that!” Mike laughed and said, “Huh! Probably not as many as you think!”
Scenario
The next week, Debra wore a black suit to work. Mike asked her if she was trying out funeral clothes. Debra asked what he meant and he replied, “Well, you are getting on up there, you know.” Debra laughed and said, “Well, this suit will be out of date before I need it for that!”
Scenario
Two days later Mike and Sam, the receptionist, are in the break room and Debra comes in. Mike says to Sam, “Hey, look at her. Over the hill but she still manages to get to work on time!” Mike and Sam laugh as Debra leaves the room.
Scenario
Debra confides to Mary, a secretary, that Mike is really starting to get on her nerves with all of the age jokes. One was funny, but it’s getting out of hand and starting to embarrass her since he is making jokes in front of others. Mary advises her to tell Mike that he is making her uncomfortable, but Debra “doesn’t want to rock the boat.”
Scenario
At the time clock at the end of the day, Mike says to Debra, “Hey, you first – age before beauty you know!” Debra looks at Mary, nods her head, smiles at Mike and immediately goes to the HR Department to file a harassment complaint against Mike.
Is the complaint valid and an investigation warranted?
Determine at what level the investigation should be resolved.
14.1 Complaint Resolution (Grievance Process)
1. An effort should first be made to resolve the grievance informally at the unit/department level (see Appendix for additional detail when an Area Command oversees the local unit). 2. If the grievance cannot be resolved at the unit/department level, the employee may submit a grievance, in writing, to the Divisional Secretary (Division), Assistant ARC Commander (ARCC), Assistant Principal (EBC) or Assistant Territorial Executive Director of Human Resources (THQ made to reconcile the grievance and resolve it. ). With the assistance of the above named individual, every effort will be 3. If the employee is unsatisfied with the outcome, they may then submit a grievance in writing to the Territorial Executive Director of Human Resources.
The Territorial Executive Director of Human Resources will review the case with the Secretary for Personnel and determine the appropriate action to be taken. 4. After review of all relevant facts, including interviews with involved parties, the Secretary for Personnel shall determine final resolution. The Secretary for Personnel’s ruling is final.
The Investigation Process
First Steps
• • • Notify Divisional Headquarters, if applicable.
Obtain a written statement from complainant.
Ensure confidentiality: • Acknowledgement Form • Provide interim protection: • Leave of absence • Transfer • Schedule change • Investigatory leave for accused
Obtain a Written Statement
• Who?
• What?
• Where?
• When?
• How?
Acknowledgment Form (Complainant)
ACKNOWLEDGEMENTS I was informed and I understand that I am to truthfully relate facts and disclose any relevant information as pertains to the investigation into the complaint I filed against
Create a Plan for the Investigation
• • • • • • • • • • • Select the investigator.
Select the venue for the interviews.
Prepare interview questions.
Conduct interviews.
Review interview notes.
Make a decision.
Prepare Investigation Report & review with supervisor.
Initiate disciplinary action (if warranted).
Provide response letters.
Secure all documentation in the legal and personnel files (if appropriate).
Follow up with complainant.
The Investigator
• Knowledgeable of TSA policies and procedures • Respected by peers and management • Able to be impartial and objective • Effective as a witness in the court system • Consider hiring an attorney or third-party investigator
Venue
Consider: • Private access • Off the “beaten path” • Off-site
Questions for the Complainant
• • • • • • • • Review the Acknowledgement Form. Has anyone tried to talk to you about this incident? What was said? How did you respond?
Review the written statement and ask for any additional information.
If hesitant – may I ask why you seem hesitant to discuss the details of this situation?
Can you identify witnesses who can shed light on the situation?
Over how long of a period of time did the behavior take place?
Did you ever ask the accused to stop the behavior? Why not?
What do you think should be done to resolve the matter?
Questions for the Accused
• • • • • • Review the Acknowledgement Form and obtain signature.
What is your response to the allegations? If the harasser claims that the allegations are false, ask why the complainant might lie. Are there any persons who have relevant information? Are there any notes, physical evidence, or other documentation regarding the incident(s)? Do you know of any other relevant information?
Acknowledgement Form (Accused)
ACKNOWLEDGEMENTS I was informed and I understand that a claim of
I understand that the claim against me and investigation into it is a confidential Salvation Army matter, and I understand that I am not to discuss any aspect of the investigation with anyone other than the individuals listed below, and that doing so constitutes a breach of confidentiality and is subject to disciplinary action, which could include termination of employment.
Questions for Witnesses
• • • • • • Review the Acknowledgement Form and obtain signature.
What did you see or hear? When did this occur?
Describe the alleged harasser’s behavior toward the complainant.
What did the complainant tell you? When did s/he tell you this? Do you know of any other relevant information? Are there other persons who have relevant information?
Acknowledgement Form (Witness)
ACKNOWLEDGEMENTS I was informed and I understand that I have been identified as a person who may have knowledge about certain allegations that are under investigation. I was informed and I understand that I am to truthfully relate facts and disclose any relevant information as pertains to this investigation. I was informed and I understand that the investigator is going to reduce my interview answers into written form. I was informed and understand that I will have time to review my statement for accuracy and make any necessary changes. I was informed and I understand that after ensuring that my statement accurately reflects the answers that I gave during my interview, I will sign the statement attesting to the truth of that statement. I was informed and I understand that my sworn statement will be included with the investigative report. I understand that The Salvation Army has a policy in place to prevent and prohibit retaliation. Retaliation was explained to me and, in the event that I feel subjected to retaliation based on my participation in this investigation, I was encouraged to report it immediately.
I understand that the matter under investigation is considered a confidential Salvation Army matter, and I understand that I am not to discuss any aspect of the investigation with anyone other than the individuals listed below and that doing so constitutes a breach of confidentiality and is subject to disciplinary action, which could include termination of employment.
Sample Interview Document
INVESTIGATION INTERVIEW SHEET THE SALVATION ARMY
Date: ____________________________________ ___________ Investigator: ___________________________________________ Interviewee: ___________________________________________ Time and Place: _________________________________________ 1.
What is your working relationship with
Do you understand what harassment means? 3.
Have you ever personally witnessed any behavior in the office that you would consider harassing to another employee?
Credibility Determinations
• • • • • If there are conflicting versions of relevant events, you will have to weigh each party’s credibility. Factors to consider include: Inherent plausibility: Is the testimony believable on its face? Does it make sense? Demeanor: Did the person seem to be telling the truth or lying? Motive to falsify: Did the person have a reason to lie? Corroboration: Is there witness testimony (testimony by eye witnesses, people who saw the person soon after the alleged incidents, etc.) or physical evidence (written documentation) that corroborates the party’s testimony? Past record: Did the alleged harasser have a history of similar behavior in the past?
Make a Decision
• Don’t jump to conclusions – review all interview information.
• Resolve all credibility issues.
• Conduct follow up interviews, if necessary.
• Review investigation with supervisor and/or Divisional Human Resources Director.
Prepare the Investigation Report
Investigation Report The Salvation Army
The following materials are confidential and not for reproduction without express written permission of the Investigator.
Investigator: Date: Location: Complainant: Witness(es): General Statement of Issue(s): Department/Unit: Complainant Handwritten/Typed Statement Attached: Yes No Detail of Interviews: Summary of Facts: Applicable Policies: Conclusion: Recommendation(s): Final Determination/Decision(s): Signature of Investigator:
Investigation Report Details
• • • • Statement of Content • Summary of complaint • Policies involved • Summary of Investigative findings Witnesses • Name, Position and any other relevant details • Attach witness statements and Acknowledgement Forms Recommendations • Resolution • Follow up action Signed by investigator
Initiate Disciplinary Action
• • • • Determine the appropriate level of disciplinary action: Verbal Warning • Follow up with written memo for documentation purposes Written Warning • Utilize the Employee Disciplinary Report form Suspension • Specify the dates of suspension on the Employee Disciplinary Report form Termination
Provide Letters to Complainant and Accused
• • Letter to Complainant • Notification of conclusion of investigation • Findings • • Action taken Retaliation • Confidentiality Letter to the Accused • Notification of conclusion of investigation • • Findings Document disciplinary action taken (if applicable) • Retaliation • Confidentiality
Sample Letter to Complainant and Accused
PERSONAL
Employee Department
RE: INVESTIGATION/COMPLAINT
This letter will notify you that we have concluded the investigation into the claim of
date
. As you are aware, this is a serious matter and we appreciate your patience throughout this investigation process. These claims have been investigated thoroughly; the following has been determined: there is not sufficient evidence to substantiate the claim that harassment has occurred. (ALTERNATE: We have investigated this claim thoroughly, and appropriate disciplinary action will be taken in accordance with Salvation Army policy). Should further information come to light, The Salvation Army reserves the right to reopen the investigation at any point in the future. You will need to continue to refrain from discussing this investigation or its conclusion with any colleagues or coworkers. Additionally, there will be no retaliation of any kind against anyone who was part of the claim or investigation process. Please be aware that any of the above actions can be the basis for corrective action up to and including termination. Should additional information come to light, The Salvation Army reserves the right to reopen the investigation at any point in the future. If you have any questions regarding the investigation or the above information, please contact me. Regards,
Provide Letters to Witnesses
• Thank you for participation • Notification that the investigation has been concluded • Retaliation policy • Confidentiality
Sample Letter to Witness
PERSONAL
Employee Department
RE: INVESTIGATION
Thank you for the information you provided as part of our recent investigation. We have conducted a complete and thorough investigation which has now been concluded. In light of the confidential nature of the investigation, please be advised that you will need to continue to refrain from discussing the investigation with anyone other than Human Resources personnel involved in the investigation. Additionally, no retaliation will be permitted against anyone who was part of the claim or investigation process. Please be aware that any of the above actions can be the basis for corrective action up to and including termination. Should you feel that retaliation has occurred, you are encouraged to report that immediately. If you have any questions regarding the investigation or the above information, please contact me in the Human Resources Department. Warm regards,