Posted on August 11, 2011 by Marylee Abrams

The Three Most Powerful Words in an Employment Investigation: "Tell Me About..."

Taking a statement from an employee in a workplace investigation is an acquired skill, most investigators don’t have sufficient opportunity to practice or perfect. At this point in my career, I have represented clients in over 1,500 workplace investigations, from both sides of the table. I previously represented employees and now exclusively represent employers. I have come to the conclusion there are three words which can cause employees to drip sweat, and can strike fear in most union representatives. Those three words are; “Tell me about…” as in “Tell me about the pornographic sites found in your computer history;” “Tell me about why you were late for work;” “Tell me about the car accident with the company truck;” or “Tell me about the conversation you had with ...”

Asking an open-ended question invites the employee to provide a narrative response, likely to be broad in scope, and extremely helpful to the investigator. If asked as the very first question in the statement, it can provide an opportunity for the investigator to observe the demeanor of the employee, assess the employee’s comfort level with the process, and perhaps help in developing opinions about truth and veracity. Those three powerful words are extremely difficult for a union representative, because they make it difficult to predict what the employee will say in response, and they make it harder for the union to interfere with the statement. 

 

Several weeks ago I presented a three hour course on investigations called, “How to Take the Best Internal Affairs Statement of Your Career,” and shared these three most powerful words.   I advised all those attending the class, that if they remembered one thing from the class, they should remember the three powerful words, “Tell me about…” The quality of responses and the volume of information obtained from the employee being questioned will be greatly enhanced, resulting in a more complete investigative statement.  

 

For those wondering, the next question to ask after, “Tell me about,” is either, “Anything else?” or “What happened next?” Short prompting questions at this point will keep the employee talking, and provide even more valuable information to the investigator. 

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Posted on March 8, 2011 by Marylee Abrams

Employer Loses a Discrimination Case Based on a "Cat's Paw" Argument

Last week, the United States Supreme Court ruled in favor of an employee who had alleged he was terminated from his job as a technician at a hospital, due to his military service.  Staub v. Proctor Hospital. The employee claimed he had been discriminated against in violation of the Uniformed Services Employment and Re-employment Rights Act (USERRA).

Mr. Staub argued that the anti-military hostility of two supervisors had wrongly influenced the final decision-maker, who made the decision to terminate his employment.  The case is troubling because there was no proof the decision-maker was aware of the supervisors' hostility towards Mr. Staub’s military service, or even that she shared in the supervisors’ hostility towards military obligations.   The Court stated, “We therefore hold that if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if the act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”   The Court aggregated the supervisors’ military hostility and attributed it to the decision maker and her decision to terminate Mr. Staub.  The Court remanded the case to the Seventh Circuit to determine if a new trial was warranted.

Mr. Staub’s legal argument of the case is known as a "cat's paw" theory.  The theory stems from a 1600’s fable by Jean de la Fontaine, where a monkey induces a cat through flattery, to extract roasting chestnuts from a fire.  After the cat has removed the chestnuts, burning his paws in the process, the monkey runs off with the chestnuts and leaves the cat with nothing but his burned hands.  Translated to employment law, an employer can be held liable for discrimination when it can be established the final decision-maker was influenced to take an adverse employment action against an employee (such as termination in the Staub case) through the actions of a lower-level employee who has discriminatory motives.

The difficulty in the case, lies in determining what was the motivating factor of the employer in deciding to terminate Mr. Staub’s employment. The lower court noted, the internal investigation conducted by the employer could have been “more robust.”  This means there were skimpy facts on the record to support that the termination was for any other reason, but for the actions taken by the supervisors who had exhibited military hostility.  This affords a small nugget for employers to take away from the case, when assessing termination decisions in the future. 

Employers should:

  • Make sure their workplace investigations are independent and thorough.  This is especially true if an investigation concerns allegations of discrimination against a supervisor.
  • Accurately document work performance issues and conduct annual performance evaluations of both employees and supervisors.
  • Review and update workplace complaint procedures and make sure everyone is aware of them.
  • Document all employee complaints and be sure to include documentation regarding the outcome of the complaint.
  • Train supervisors on USERRA.

 

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Posted on January 10, 2011 by Marylee Abrams

Garrity-What Is It And Why Does It Matter So Much To Public Employers?

Garrity refers to a 1967 United States Supreme Court decision that continues to be a mystery to many public employers. (pdf) It is a case they don’t teach in law school, and in fact it is unfamiliar to many city and county attorneys. It represents a very small niche in workplace investigations, but it can have a nuclear impact if the case is overlooked or misapplied, resulting in a criminal walking free. The principles of the case apply to all public employees who are the subject of an internal affairs investigation.

In Garrity, New Jersey police officers were ordered to answer questions as part of an internal investigation into allegations of traffic ticket-fixing. The police officers were ordered to answer questions asked by the internal affairs investigator, and they were told if they refused to answer the questions, they would be terminated from employment. The answers provided by the officers were then turned over to the prosecuting attorney to assist in criminally prosecuting the police officers. The United States Supreme Court held the officers statements (ordered under threat of termination) were compelled, and therefore violated their Constitutional rights.

Understanding Garrity is crucial to all public employers. While the case may be over 40 years old, it is good law today. Minnesota (pdf) has had several appellate court decisions (pdf) concerning Garrity issues.

On January 13, 2011, our firm is conducting comprehensive Garrity training, in conjunction with the White Bear Lake Police Department. (pdf) We have dissected almost a dozen local Garrity cases. We present the cases fact by fact, to help attendees not only understand, but also apply the Garrity case to real life situations. Our goal is to make sure the Garrity case is known and correctly applied by public employers, and help to avoid a potential disaster.
 

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Posted on January 7, 2011 by Marylee Abrams

Creating Videos on Work Time Leads to Employee Discipline

The Commander of the USS Enterprise (the US Navy sailing ship, not Captain Kirk’s star fleet battleship), ran into rough seas over lewd videos he made while on-duty, and then aired for the crew of his aircraft carrier. Capt. Owen Honors has been temporarily relieved of duty, while the Navy is conducting a formal investigation.

The videos shot in 2006 and 2007 included gay slurs, suggestive shower scenes, and simulated sexual acts. Capt. Honors characterized the videos as an effort to blow off steam and boost morale on the ship, which was not well-received by the Navy. The videos, ”…were not acceptable then and are not acceptable in today’s Navy.” Navy Cmdr. Chris Smith stated, executive officers and other leaders “… are charged to lead by example and are held accountable for setting the proper tone and upholding the standards of honor, courage, and commitment that we expect sailors to exemplify.” Capt. Honors will have rough sailing ahead, and no doubt discipline will follow.

Goofing around with video doesn’t just happen on naval ships out at sea. A local Minnesota police department experienced similar poor judgment when several of its officers, including a supervisor, shot an anti-management video concerning on-going labor negotiations. The officers made a Star Wars parody while on-duty, with costumes and dialogue. The video was edited to include a rolling text screen like the original Star Wars films, a musical score, and credits. Management was portrayed as the evil empire, and the final scene included a picture of a City Council member with a voice over of the evil emperor.

The department conducted an investigation concerning the Star Wars video, which also uncovered that the employees had made other videos while on- duty. The investigation resulted in discipline of the involved officers. I represented the city at arbitration where Arbitrator Beens upheld a five day suspension of one of the officers, and Arbitrator Moeller reduced a ten day suspension of another officer to a seven day suspension. (pdf) Another case is still pending. 

The union argued the videos were part of team-building and stress-relief at work, but neither arbitrator was convinced. I think it is safe to say creating videos on-duty, unless it is part of a legitimate training function, is very problematic. It is activity which will surely lead to an investigation, and more than likely serious workplace ramifications for employees.

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Posted on January 5, 2011 by Tiffany Schmidt

Calling a Female Colleague "Sweet Baby" Sounds Like Sexual Harassment at ESPN

Yesterday, veteran play-by-play announcer Ron Franklin was fired by ESPN for calling sideline reporter Jeannine Edwards “sweet baby” during a production meeting before the Chick-fil-A Bowl. When Ms. Edwards objected to the remark by Mr. Franklin, he called her an “asshole”. Mr. Franklin was removed from ESPN Radio coverage for the 2011 Fiesta Bowl. Mr. Franklin subsequently apologized for his remarks, but that wasn’t enough to save his job.

This isn’t Mr. Franklin’s first incident with the use of inappropriate remarks while working at ESPN. Back in October 2005, ESPN communicated with Mr. Franklin that his on-air comment calling sideline reporter Holly Rowe “sweetheart,” was inappropriate. That matter was addressed internally by ESPN.

The Y! Sports Blog remarked, “The network should be praised for taking a stand, but the fact that it waited four days suggests that if the Franklin story had gone away quickly, he’d still have a job today.”   I respectfully, disagree with the author’s position. My first recommendation would be to conduct an investigation into the alleged incident, before taking any disciplinary action against an employee. Making a knee-jerk reaction generally lands an employer in hot water later. I have no knowledge on what ESPN was doing in the days since the incident occurred on Dec. 31, 2010, but taking four days over a holiday weekend to investigate and review a matter, and then issue the discipline does not seem overly long to me.

ESPN clearly takes workplace issues seriously. Mr. Franklin is not the first employee to receive discipline from the network for inappropriate comments or demeaning behavior towards females. TV host, Tony Kornheiser was suspended last year for comments made on-air about a female anchor’s wardrobe. Baseball analysts Harold Reynolds and Steve Phillips were both fired in separate incidents for demeaning behavior toward female employees. In fact, in 1992 ESPN suspended the current “Monday Night Football” announcer Mike Tirico for harassment.

Kudos to ESPN for actually holding employees accountable for their actions and not just brushing these types of issues under the rug. If you receive a complaint of harassment from an employee, do your due diligence and give it a proper and complete investigation before taking action. Collect all the facts first, so a well-reasoned decision can be made.

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Posted on December 15, 2010 by Marylee Abrams

"1984" Big Brother in the Workplace?

George Orwell published his classic social science-fiction novel “1984” over sixty years ago. We all know the theme from high school English literature class. The world is embroiled in perpetual war, and government practices pervasive surveillance and mind-control to manage citizens. The main character, Winston Smith, is responsible for re-writing history to fit government’s ideology when he rebels against “Big Brother.”

I am not suggesting something as sinister as “Big Brother” is alive and well today. I am suggesting surveillance technology in the workplace is expanding and being used in new and different ways.

Bloomberg Businessweek reports an increase in the number of employers using the surveillance services of private detective agencies, to catch employees who abuse sick leave and play hooky from work. “Kronos, a workforce productivity firm in Chelmsford, Mass., recently found that 57 % of U.S. salaried employees take sick leave days when they are not really sick-a nearly 20 % increase from statistics gathered between 2006 and 2008.”

Detectives reportedly uncovered a teacher who fabricated an inoperable brain tumor to take an extended leave, firefighters caught attending a hockey game on-duty, and a health-care worker taking three days off for the flu, who was actually visiting Universal Studios theme park. Employees were found to use technology to cover their location, such as the employee who mailed his GPS tracker to the hotel where he was supposed to be attending a conference, while he had opted for an exotic vacation. It appears there is a thriving business for detectives, hired by employers to stop employee sick-leave abuse.

A different kind of surveillance is being used by the Burnsville, Minnesota, Police Department, which allows police officers to record citizen contacts with the help of body cameras. They are the first police agency in the state to purchase and equip its officers with this new technology, which includes a camera worn on their hat, and a portable computer where recordings are stored. The department reports, “The cameras will cut down on officers working overtime to testify in court because the video will speak for them in many cases. And there will be a lot fewer personnel hours spent investigating complaints against officers.”

As new technology is developed, employers will have to intentionally review their potential use and determine how it fits into their workplace philosophy. To the extent employers notify employees about core values and workplace expectations, and advise employees that misconduct will not be tolerated, then surveillance may not be viewed as “Big Brother” watching over their shoulders. Instead, it will be viewed as a means of holding employees accountable. 
 

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Posted on December 10, 2010 by Marylee Abrams

False Gun Rumor at Work Results in a $476,326 Verdict Against Employer

Coworkers at the Marriott Hotel in Rochester, Minnesota started a false rumor that a 22 year veteran bellhop, Jeff Moen, brought a .357 Magnum to work with him. The rumor claimed Moen intended to use the gun at a meeting with management, and intended to “blow everyone away, including himself.” 

According to reports, Marriott took immediate steps to fire Moen and notified the union. They also contacted a security firm from California, who recommended they obtain statements from employees. The hotel manager interviewed employees and made notes. Upon returning to work, Moen was met by a police officer who escorted him into a conference room where he was terminated from employment.

Moen’s attorney, Mark Stephenson, conducted his own investigation and determined the rumors were much like the old children’s game of telephone, where a story is embellished and expands with each telling. The false rumors probably started when Moen commented he had bought a gun as he was an avid hunter. It then expanded to “he brought a gun” to “he brought a gun to the meeting” and finally to “he brought a gun to the meeting and intended on blowing everyone away including himself.” Moen sued for wrongful termination including breach of his union contract and defamation, and alleged the employer had conducted a faulty investigation. The jury awarded $476,326.00 representing lost wages, and past and future damage to his reputation. It appears an appeal may be on the way.

Failure to adequately investigate allegations of employee misconduct can be very costly to employers. A gun report at work must be taken seriously, but it appears here the employer jumped to conclusions which were simply not supported by facts or evidence. There is a window of opportunity to take statements and proceed methodically. Unfortunately, the facts and evidence were not discovered until trial, resulting in a very costly mistake for Marriott.
 

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Posted on July 21, 2010 by Marylee Abrams

What can Employers Learn from the Agriculture Department and the NAACP?

Knee-jerk reactions can lead to embarrassing mistakes, and can generate a firestorm of negative press coverage. This can be seen in the recent misstep where senior employee Shirley Sherrod was condemned by the NAACP, and ousted from her job by the Secretary of Agriculture. Neither the NAACP nor the Obama Administration conducted an investigation prior to their now infamous knee-jerk reactions.

NAACP President Benjamin Todd Jealous has since retracted the organization’s previous statement about Sherrod, and claimed they were “...snookered into believing that Sherrod expressed racist sentiments at a local NAACP meeting in Georgia earlier this year.” They weren’t snookered, they jumped to conclusions without taking the time to collect and review all of the evidence. 

Similarly, the Obama Administration is reconsidering a reversal on her future employment, just hours after her forced resignation. MSNBC reports, Sherrod is not sure she would take her job back even if it was offered.

An employer’s obligation to conduct a full, fair, and thorough workplace investigation should never be compromised, or rushed to conclusion without careful review of all of the facts. Shame on both the NAACP and the Obama Administration! They were too quick to cast Ms. Sherrod’s character and integrity into the shark pool, without taking the necessary time to conduct a proper investigation.

Allegations of workplace misconduct warrant taking the necessary time and effort to determine if in fact the alleged misconduct occurred. I have blogged in the past about serious errors employers make when investigating employee misconduct, and how to avoid them. Jumping to conclusions seemed almost too simple to add to my list of employer don’ts; that is until today.

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Posted on April 15, 2010 by Marylee Abrams

Speaker at the Minnesota Chief's of Police Executive Training Institute

I just finished speaking at the Minnesota Chiefs of Police Executive Training Institute in St. Cloud Minnesota. The Conference theme was “Troubled Waters-Bridging the Gap” and I was asked to present on the top ten problems with internal workplace investigations. I previously blogged about the same topic outlining 10 workplace investigation snafus and fubars.

Even Chiefs of Police struggle with workplace investigations of employee misconduct, despite being instrumental in conducting so many investigations into criminal conduct as part of their policing duties. Investigating criminals is seen as just part of the job, while investigating a fellow employee is a completely different animal. Employees in a workplace are part of a group, sometimes viewed much like a family. Investigating a “family member” is difficult for any employer, including Chiefs of Police.

Conducting a full, fair, neutral investigation is crucial not only to the suspect employee, but also to other employees in the department, the morale in the workplace, and the integrity of the department. Workplace investigations require time and planning to be done right. There are no short-cuts to a well-planned and executed workplace investigation.

Internal workplace investigations can cause troubled water for a law enforcement agency, but the quality of the investigation will serve to bridge the gap.
 

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Posted on March 25, 2010 by Marylee Abrams

Top 10 Workplace Investigation Snafus and Fubars (Part 2)

Based on my experience with over 1,000 workplace investigations of employee misconduct, formerly representing employees and now exclusively representing employers, it was pretty easy to develop a list of the top 10 worst investigation mistakes. Here is Part 2 outlining what investigative mistakes can either qualify as a snafu, (a situation marked by errors or confusion) or an outright fubar, (fouled up beyond all recognition).

6.  Microscope and Telescope.  We all know a microscope magnifies very small things, and a telescope can bring far away stars and planets and make them look very close.  Each workplace investigation should carefully scrutinize the facts of the alleged employee misconduct and then step back and consider the actions in light of the entire workplace.  Insuring all employees are treated alike and all actions of misconduct are handled in a similar manner can only occur if you use both a microscope and a telescope in viewing a workplace investigation.

7.  “I don’t know” or “I don’t recall” does not necessarily mean “I am lying.”  Employees understandably can be nervous while giving an investigative interview.  A few “I don’t remembers” are to be expected and even a few “I can’t recalls” can be expected.  These answers should not automatically be interpreted as the employee is lying.  Dishonesty should be assessed through both witness credibility techniques and empirical evidence. 

8.  Don’t assume facts.  Facts must be established through statements, witnesses, and evidence.  They should never be assumed.  Making assumptions instead of relying on established facts, will result in a weak investigation which will be very difficult to defend.

9.  Failing to listen means failure for the investigation.  An investigator must be flexible and focus on listening to the responses of witnesses, so they can then probe more deeply.  Too often, the investigator will focus more on checking off a list of sequential questions when interviewing a witness, than asking crucial follow-up questions.  This is a fatal flaw.  A thorough investigation is the goal, not merely checking off a completed task. 

10.  Wrap it up right.  The conclusion of a workplace investigation should have a well thought out format which addresses the process of the investigation, the findings, supportive facts, and conclusions. It should be wrapped up and presented to the decision-maker like a Christmas present for careful consideration.

Workplace investigations are not for the faint of heart or the weak in spirit.  They can affect workplace productivity and morale. They should be undertaken with careful planning and execution to insure fairness and even-handedness.  If employee discipline results from the investigation, it must be defensible.  There are no easy short-cuts to a quality investigation.

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Posted on March 22, 2010 by Marylee Abrams

Top 10 Workplace Investigation Snafus and Fubars (Part 1)

Based on my experience with over 1,000 workplace investigations of employee misconduct, formerly representing employees and now exclusively representing employers, it was pretty easy to develop a list of the top 10 worst investigation mistakes. The investigative mistakes can either qualify as a snafu, which is a situation marked by errors or confusion or an outright fubar. A fubar for those of you unfamiliar with World War II soldier slang, stands for “fouled up beyond all recognition,” or a derivative of fouled up.

1. Personalizing the investigation. An Investigator too often personalizes the investigation instead of sticking with fact and evidence collection. The Investigator’s role is to serve as a neutral fact-finder. The Investigator should be discrete, respectful, and professional.

2. Misunderstanding voluntary and compelled witness statements. Failure to understand the difference between a voluntary witness statement and a compelled statement can be lethal! If an employer wants to take a compelled statement from an employee as part of a workplace investigation, it may impact on whether or not the conduct could ever be pursued criminally. The 1967 United States Supreme Court decision in Garrity v. New Jersey (pdf) addresses this issue. It is crucial to first determine whether or not the allegation of employee misconduct concerns criminal conduct. If it does, have prosecuting authorities review the matter first before conducting a workplace investigation.

3. Failure to consider all management options. Management has a full cadre of available options to consider in managing employees. These include training, coaching/counseling, policy revision, notation in a supervisory file, performance evaluation, or mentoring to name a few. Only after carefully considering all available options and alternatives, should a workplace employment investigation be initiated.

4. Failure to develop an investigative plan. If a workplace investigation is warranted, careful thought should go into deciding: a) the list and order of witnesses, b) timing of the investigation, c) how witness statements will be memorialized, d) what evidence needs to be collected, e) who might be present during interviews and f) what rights the suspect employee might have to representation, if any.

5. Failure to follow up on all leads. It is very difficult to defend an incomplete investigation. All leads must be pursued to a rational conclusion and all witnesses must be interviewed, or an intentional decision made that the witness can’t offer any substantive information. All i’s must be dotted and all t’s must be crossed. The scope and procedure of the investigation may be scrutinized by an arbitrator or a judge. It is best to think ahead and consider the possible review which may follow the conclusion of an investigation.
 

Investigations should be conducted intentionally with a very definite plan. Stay tuned for Part 2.

 

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