Internal investigations

• Author: Laura M. Franze
• Pages: 449-482

INTERNAL

INVESTIGATIONS

13-1

CHAPTER 13

INTERNAL INVESTIGATIONS

BY LAURA M. FRANZE

13:1. REASONS FOR INTERNAL INVESTIGATIONS

A. Discrimination Claims

B. Harassment Claims

C. Corporate Fraud Claims

D. Violations of Company Policy

E. Workplace Violence

F. Theft/Embezzlement

G. Violation of Statutory Obligations

H. Drugs

I. Pre-Employment Investigations

1. Criminal Background

2. Credit History

3. Employee Testing

a. Personality and Job Skills Testing

b. Medical Testing

c. Drug Testing

13:2. SPECIAL TORT LIABILITY ISSUES IN CONDUCTING INVESTIGATIONS

A. Public Disclosure of Private Facts

B. Placing Applicant/Employee in False Light

C. Intrusion Into Applicant/Employee’s Seclusion

D. Negligent Investigation

E. Intentional Inf‌liction of Emotional Distress

F. Defamation

G. Wrongful Discharge

H. Other Torts Resulting From Internal Investigations

13:3. EFFECTIVE INVESTIGATIONS

A. Determine Issues at Stake

B. Review Internal Policies and Procedures

C. Interview Complainant

1. Practical Considerations

2. Suggested Interview Questions

D. Determine Whether Formal Investigation Is Warranted

1. If No Formal Investigation Is Warranted

INTERNAL

INVESTIGATIONS

Texas Employment Law 13-2

2. If Formal Investigation Is Warranted

E. Determine Who Should Investigate

1. Human Resources

2. In-House Counsel

3. Outside Counsel

F. Interview Accused and Third Parties

1. Practical Considerations

2. Interview Accused

a. The Basics

b. Sample Questions

c. Weingarten Rights

d. Protecting the Accused

3. Interview Third Parties

a. Determine Who to Interview

b. Practical Considerations

c. Dealing With Uncooperative Witnesses

d. Sample Questions

G. Resolve Credibility Issues

H. Documentation of Investigation

1. Employee -Generated Documentation

2. Employer-Generated Documentation

3. Maintain Conf‌identiality

4. Create Final Investigation File

13:4. SEXUAL HARASSMENT INVESTIGATIONS

A. Faragher and Ellerth

B. Harassment by Co-Workers

C. Harassment by Supervisors

1. Resulting in Tangible Job Action

2. No Tangible Job Action

D. Aff‌irmative Defense

1. Reasonable Care to Prevent and Remedy

a. Example: Reasonable Care

b. Example: Unreasonable Response

2. Plaintiff ’s Unreasonable Failure to Use Available Protections

13:5. CORPORATE FRAUD INVESTIGATIONS

A. Investigations of Employee Reports of Fraud Covered by Sarbanes-Oxley [Whistleblower Reports]

B. Independent Investigation

C. Recovery and Analysis of Computer Data

1. Retrieval

2. Retention

13:6. PRIVILEGE ISSUES

A. Attorney-Client Privilege

1. Generally

2. When Does Privilege Attach?

3. Waiver Potential

4. Department of Justice Opinions

B. Strategies for Protecting Communications and Documents

1. Keep Communication With Counsel Conf‌idential

2. Give “Legal Advice,” Not “Business Advice”

3. Carefully Manage Non-Attorney Resources

4. Only Communications With “Client” Protected

INTERNAL

INVESTIGATIONS

13-3 Internal Investigations

C. Work Product Doctrine

1. Statement of Doctrine

2. Investigation Materials as Work Product

D. Self-Evaluation/Self-Critical Privilege

E. In-House Counsel

1. Dual-Capacity Role

2. In Practice: Clearly Identify Role Being Played

13:7. PROCEDURAL REQUIREMENTS FOR INTERNAL

INVESTIGATIONS CONDUCTED BY OUTSIDE INVESTIGATOR

13:8. EMPLOYEE REPRESENTATION RIGHTS

A. Weingarten Rights Def‌ined

B. Nonunion Employees

C. Scope of Weingarten Rights

1. To Whom Does Right Belong?

2. Must Employer Advise Employee of Right?

3. What Is an “Investigatory Interview”?

4. What Is Standard for “Reasonably Believes”?

5. Who May Represent Employee?

6. What Is Representative’s Role at Meeting?

7. May Employer Cancel Meeting if Employee Requests Representation?

8. Does Right Attach Post-Discipline?

13:9. CHECKLIST FOR EFFECTIVE INVESTIGATIONS