BFV Perspectives, Sports Fans Guide 2 HR, | Sep 15, 2014

Essential Workplace Investigation Tips to Consider in Wake of NFL and NBA Controversies

It has been a very tough week for NFL commissioner, Roger Goodell, whose handling of the Ray Rice domestic violence matter has sparked a media firestorm. The latest focus has been on the conflicting reports of whether Goodell knew Rice punched his then fiancée and whether Goodell saw the video tape or knew of its contents prior to issuing a suspension of only two games.

The amount of criticism targeted at Goodell is not likely to subside anytime soon, given the recent indictment of Minnesota Viking running back Adrian Peterson on charges of reckless or negligent injury to a child. In addition, there has been a public outcry over the league’s reluctance to suspend Carolina Panther Greg Hardy. Hardy was found guilty of an assault against his ex-girlfriend and is now awaiting a jury trial. Although Hardy is currently de-activated by the team, he has not been suspended by the league.

Things have not been any easier for the Atlanta Hawks’ management team, especially its General Manager, Danny Ferry. Ferry was placed on indefinite suspension by the Hawks for repeating racially charged comments during a team conference call. In effort to address the problem and move forward, the Hawks’ CEO, Steve Koonin, issued an Open Letter of apology to the team, fans and the City of Atlanta stating in part:

“Over the course of the last week, the Hawks have let down our players, our employees, our fans and the city we love. Our shortcomings have been broadly shared — including how we have failed to operate well internally and externally. It has been humbling and, while we have read, seen and come to know many things about ourselves, our learnings have just begun.”

As Koonin’s Open Letter recognizes, there are a lot of lessons organizations can learn from these situations. Thinking before you talk about sensitive issues and monitoring what you write in emails are obvious take-aways.
The NFL and NBA controversies also highlight the importance of conducting thorough investigations when serious matters arise in the workplace. As a general rule, an employer has a legal duty to know about misconduct in the workplace and take reasonable steps to make sure the problem does not persist. Conducting an investigation is the first part of fulfilling this obligation. Indeed, the U.S. Supreme Court has established that conducting a prompt and thorough investigation can help establish an affirmative defense to certain harassment claims.

On the flip side, an employer’s failure to conduct a prompt and thorough investigation can lead to liability and extraordinary damages. Also, as evidenced by the Ray Rice fiasco, failing to conduct a thorough investigation (or at least giving the appearance that an investigation was not thorough), can have other negative effects such as: undermining the legitimacy of the disciplinary decision, destroying the credibility of the decision maker, and leading to inconsistent outcomes (e.g., Rice being suspended but not Hardy?).

Tips to Conducting a Workplace Investigation

So how does an employer conduct an effective investigation? Below are 5 keys to conducting a thorough, defensible investigation.

1. Follow Existing Policies. The starting point to conducting an investigation is to review any policies that exist to deal with the complaint. There may be different procedures to follow depending upon the nature of the complaint. For example, a company may have a grievance policy for handling certain types of complaints, but may have a separate policy to address harassment complaints. It is important that an employer not deviate from its written policies. If any time periods are stated in which the employer must act, make sure they are followed. A sound harassment policy should contain an anti-retaliation provision and also promise confidentiality only to the degree practical. Follow such provisions by reassuring employees that they will not be retaliated against for participating in the investigation and by not promising absolute confidentiality.

2. Select An Unbiased Investigator. One of the most important factors that can impact the integrity of the investigation is the person conducting the investigation. The investigator should be unbiased and objective. This means, among other things, that the investigator should not have a direct financial interest in the outcome, should not directly supervise the individuals involved, and should not have a personal relationship with either the complaining party or the alleged perpetrator.

Employers that lack trained internal staff may want their outside attorneys to handle the investigation. It is important to understand, however, that the attorney who conducts the investigation may become a fact witness if litigation ensues. To preserve the attorney-client privilege and maintain the integrity of the investigation, employers should consider using third-parties to conduct the investigation. Even when issues of privilege are not a primary concern, using an outside investigator is worth considering as employees may feel more comfortable that an investigation by an outsider is fair and objective.

3. Interview Key Witnesses and Obtain Relevant Records. Witness interviews are often the most important part of the investigation. Careful thought should be given to the specific questions to be asked, the order of witness interviews and whether signed witness statements are desired. The individuals who have personal knowledge of the matter being investigated should be interviewed, even if there is concern that they may disclose unfavorable and unpleasant information. Trying to ignore a problem by not interviewing key witnesses can usually lead to a bigger long-term problem. It is also important to gather any relevant records and documents. These include evidence in the form of emails, notes, calendars, voice mail messages, audio tapes and video tapes (hopefully not in the hands of TMZ).

4. Be Open-Minded. Employers should be patient and not rush to judgment. No conclusions should be made until sufficient facts have been gathered to make an informed and reasoned decision. Not everyone is going to like the outcome. Some people may feel the decision was too soft and others may feel the decision is too harsh. However, if the investigation is thorough and the process appears fair, there is a better chance the decision will be accepted and not challenged.

5. Take Appropriate Corrective Action. If the investigation reveals that an employee violated company policy, appropriate corrective action should be issued. This is true regardless of where the employee ranks in the organization’s hierarchy. Treating an executive or a large sales producer who has been determined to have violated company policy more favorably than lower ranked staff is another way to create long-term problems.

Taking corrective action does not mean that the employee who engaged in the wrongdoing must be terminated or suspended. Consideration should be given to a multitude of factors including, but not limited to, the nature and severity of the conduct as well as the company’s past practice and the employee’s work history.

The fate of Goodell and Ferry will be influenced by time, the media and valued sponsors and advertisers. In the meantime, it will be interesting to monitor how Goodell and others handle these controversies, especially the scrutiny targeted at their internal investigations. There will likely be many more lessons learned as these stories unfold.

BFV Perspectives, Sports Fans Guide 2 HR, | Sep 15, 2014
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.