The Dos and Don'ts of Workplace Investigations for Sports Industry Employers

• Publication year: 2019
• Author: Adam F. Sloustcher

The Dos and Don'ts of Workplace Investigations for Sports Industry Employers

Adam F. Sloustcher

Adam Sloustcher of Fisher & Phillips LLP represents local, regional, and national employers in a broad range of employment disputes, including single-plaintiff discrimination, harassment, retaliation, and wrongful termination matters and wage-and-hour class actions. Adam also specializes in counseling employers on how to prevent lawsuits altogether. Adam is based in San Diego, California but also serves clients in Northern California—where he grew up and played professional soccer for the San Jose Earthquakes.

In this day and age, it is imperative that employers in the sports industry understand how to conduct adequate investigations of workplace-related incidents. Conducting these investigations is required by law, and may decrease the value of lawsuits or prevent them altogether. Below is a list of dos and don'ts for you to keep in mind when conducting workplace investigations:

Dos:

Act Promptly

How soon an investigation must start depends on the circumstances, but the best practice is to conduct a prompt investigation.¹ Courts have become more stringent about the timing surrounding workplace investigations. One court held that an employer's response was prompt where it began its investigation on the day the complaint was made and three days after learning of the alleged harassment.² Another court held the opposite where the employer did not investigate until one month after the victim submitted her complaint, due to a slow bureaucratic complaint process.³ Courts also make clear that employers must not wait to investigate until it determines whether the complaint is valid.⁴ To be safe, employers should initiate investigations as soon as reasonably practicable following receipt of a workplace-related complaint.

Strategically Choose Your Investigator

One of the most, if not the most, important decisions is to select an appropriate investigator. Regardless of whether the investigator is an in-house employee (e.g., human resources, in-house counsel) or a third party (e.g., outside counsel), the individual should have zero conflicts of interest with or bias towards the complainant or the accused.⁵ It is also imperative that the investigator is not under the supervision of the alleged harasser. Choose someone who understands how to investigate, knows the law, can effectively communicate, and, if necessary, can confidently testify about the investigation.⁶

Conduct Thorough Interviews

Create a written list of witnesses to interview and begin the interviews promptly. Begin with the complainant, and focus on limiting and clarifying the specific allegations being made. Then, go over the details of each alleged incident, asking what was said, who witnessed what, under what circumstances did this occur, what the accused said, what the complainant said, what the witnesses said, and whether any documents were exchanged. Proceed with interviewing the accused and all identified witnesses to see if the details are corroborated. It may also be necessary to interview other known victims of the alleged harasser;⁷ otherwise, liability may result under causes of action for "Failure to Investigate" and "Failure to Take Prompt Remedial Action."⁸ For each person interviewed, the investigator should determine whether: (1) their testimony is believable on its face and makes sense, (2) their demeanor indicates they are lying, (3) a motive for

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lying exists, (4) other witnesses' testimony or physical evidence corroborates their testimony, and (5) their testimony indicates that the accused has a history of similar behavior. The investigator must not instruct any witness not to talk to opposing counsel.⁹

Document Everything

Documentation is critical. The investigator should take notes during and after interviews. If notes need to be cleaned up, the investigator should do so promptly. There should be notes made that explain the context or reasons for other notes. Also, if an individual on the original witness interview list will not be interviewed, document why. Keep all notes, and any written statements, in an investigation file labelled "Confidential," and save physical and electronic copies. Once an investigation is complete, follow up with the complainant and accused to explain the results of the investigation and what corrective actions, if any, are being taken. Document these interactions. Finally, expect that all notes will be projected on a large screen and become the subject of future litigation.¹⁰

Reach an Unbiased Determination and Prepare the Report

The investigator acts in the capacity of a fact finder, not as part of the employer's HR, management, or legal teams. He or she must reach a neutral, unbiased conclusion upon completion of the investigation. Any and all conclusions and reasoning should be contained in a final written report. The report should be carefully and thoughtfully prepared, and treated as discoverable evidence. Use...