- within Consumer Protection topic(s)
In this podcast recorded at our 2025 Corporate Labor and Employment Counsel Exclusive® seminar, Tiffany Stacy (office managing shareholder, San Antonio) and Lisa Burton (office managing shareholder, Boston, Portland, ME) explore the complexities of conducting investigations of highly sensitive issues. Lisa and Tiffany offer insights and tips for handling claims involving sexual harassment, alleged incidents of sexual assault or similar misconduct, and cases with potentially aggravating circumstances such as minor employees and/or the use of substances. The speakers cover important considerations such as maintaining confidentiality, preserving evidence, the value of attorney-client privilege, the importance of having an investigator with high emotional intelligence, handling interviews and making credibility assessments, ensuring the safety and wellbeing of employees and assigned investigators, and reporting responsibilities.
Transcript
Announcer: Welcome to the Ogletree Deakins podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.
Tiffany Stacy: This is Tiffany Stacy, and I am the Office Managing Shareholder of the San Antonio office. We are here at the Corporate Counsel Exclusive at the beautiful Broadmoor in Colorado Springs, and at the Exclusive we spoke of the topic of highly sensitive sexual harassment and sexual assault investigations.
Lisa Burton: Hi, I am Lisa Burton. I am the Office Managing Shareholder for our Boston, Massachusetts and Portland, Maine offices, and I spoke with Tiffany at our conference. So, I'm going to start with noting that we really talked about the tough investigations that are going to involve sexual harassment and sexual assault. And so, when a complaint comes into an employer, responsiveness is truly critical. You have to be fast in responding; you have to be accurate; you have to be fair; and you also have to have a process in place to make sure you are taking care of all of the aspects of your investigation. So, as an employer, you need to be thinking about how do I track complaints when they come in? How do they come into my workplace? Are they coming in through a hotline? Are they coming in through HR? Are they coming in through managers or supervisors, or—which you really don't want—are they coming in through a charge or a lawyer demand letter?
But no matter how you get them, once you realize you're dealing with what we consider a high risk, high potential exposure, both dollar amount and for reputational, how are you going to deal with it, and how are you going to address it, and who will be your team? And so, you need to have that in place, hopefully, ahead of time. Then, the other thing you need to be thinking about also is the safety considerations that you're going to have, depending on the issues that have come in. The EEOC and state agencies really expect the employer to take reasonable efforts to minimize the burden or negative consequences to the complainant, both during and after the investigation.
And so, one of the things you're going to need to think about immediately is, do I need to reassign folks? Do I need to transfer somebody? Does somebody need leave? Do I need to put the alleged harasser on disciplinary leave with or without pay? Depending on those considerations, and what do you need to be doing? In particular, you need to be conscious of, particularly in small groups, how are you going to manage this? Either if somebody's going out on leave, how to keep it confidential, how not to telegraph something's going on, and in fact, one of the things we talked about is if people are choosing to continue to work together during the investigation, you may have to put guardrails in on communications and who's communicating. But again, on the safety and security side, a lot of this depends on the size of your company, the size of your operations and the locations of employment. Some basic things to think about: if it's a large workplace, consider having security escorting personnel to and from their vehicles if they feel unsafe, if there are concerns. Consider onsite security or limiting, again, or controlling the electronic communications.
Also, for these of you who have EAPs, and again EAPs, employee assistance programs, make sure you're aware of what they are and what they offer so that you can share it with the complainant, and you also may need to share it with the accused because they are also oftentimes going to be impacted by the allegations. One last thing that you need to think about before I start sending this over to Tiffany, because we're talking about sexual harassment and specifically assault and or rape, think about notifying your worker's comp carrier. These are instances that a lot of people don't think about. You need to notify your worker's comp carrier so that there's a report of injury. The other aspects here, and the complainant may have already done this, but you need to think about what happens if outside law enforcement's involved or will they be involved because to the extent you are conducting an investigation, or you're having a third party do it—it could be your lawyers; it could be somebody else. You're going to need to keep in mind that those records could be subpoenaed.
Tiffany Stacy: Another consideration is early on considering some of the critical evidence that you might be able to obtain if a complaint is made early on. Sometimes complaints come in weeks, even months, after an alleged event, but sometimes those complaints are made relatively quickly such that you might be in a position to obtain evidence that could be critical in assessing credibility or coming to a determination as to what may have occurred, when it might otherwise just be a he said, she said situation, and I'm not trying to limit it to the traditional male and female roles, but for ease of reference there. In some investigations, we have been able to obtain video surveillance, whether that is from the client's own premises or sometimes from an off-site location. Many common areas, bars, restaurants, things like that, they may have video surveillance in the area of where the individuals were to be able to look at that and put together some sort of timeline as to what may have occurred, who may have witnessed certain things and other considerations.
Or oftentimes if you have a social event, something that is a group outing for employees, there may be some social media postings that can further help to develop a timeline of what happened and who was involved. Think about third-party witnesses as well. Going back to a simple reference of a hotel bar, for example, perhaps a bartender or wait staff may remember the individuals who were there, if anything stood out to them. So, those are things that you need to think about pretty quickly, and I think as Lisa mentioned during her presentation, that can be a failing point, if you will. If you actually do receive notice fairly quickly of a complaint, but you don't act quickly enough to preserve your own video surveillance, so you don't want that to be held against you later on if someone is, well, especially a plaintiff's attorney trying to attack the thoroughness of the investigation that was done.
Another thing to consider is remote investigations for these types of allegations. Certainly, remote investigations have become the norm, have become very popular simply given the geographical areas where parties may be located relative to the person who is conducting the investigation, and doing a remote investigation certainly is conducive to that prompt response that you want in these kinds of cases. Especially when it comes to interviewing the person who has made the complaint, I think it helps to develop a level of rapport early on by offering to the individual, "Where would you like to meet? How would you like to meet? Would you prefer to meet in person? Would you prefer to meet online?" And by giving a little bit of control to the person that has made the complaint, I think paves the way for a productive interview with the individual. I personally like to interview the accused wrongdoer in person because of the non-verbal cues that you may pick up on when you're in person that you would not necessarily have through a remote investigation.
Sometimes that's not practical, but that's my own personal preference there. Non-verbal cues can be just as insightful as the things that people say during the investigation. When you're thinking about who you want to lead the investigation, conduct the investigation, often you're considering, is it someone internal? Is it someone external? In these types of cases, we are often called upon to lead these investigations because there is the desire for an attorney-client privilege to attach to the work that we're doing. One thing to think about that, again, Lisa brought this up, and I had never considered it, but if we think down the road to potential litigation to depositions, Lisa said that a plaintiff's attorney had asked the HR representative who had conducted the investigation, "How many times have you substantiated a complaint?" And the answer was none, which that's something I don't know that we look at too often when we are looking at who is going to investigate a claim.
And it is problematic, I think if you have someone that has significant investigative experience, but they've never substantiated a claim, that would be unusual. And I think that's something that companies might look at even just when they're evaluating risk. Sometimes you don't have the luxury of being that selective at the forefront, but later on, if there is a claim filed and you're assessing risk, I think that's something to look at in terms of did the person who conducted this investigation, are they subject to some sort of scrutiny on the basis of their prior work?
Some additional considerations related to selecting the investigator. We are often looking at the attributes of the complainant in terms of selecting an investigator at least to do the interview with the complaining party, and that's not necessarily gender-based at all. I think sometimes, as well, you have to consider if someone is...English might be their second language. Sometimes you need to have someone that would be fluent in the first language just from a comfort level. We often will involve more than one person in conducting an investigation. That could be for reasons of speed and efficiency, but I think neither Lisa nor I are fans of recording interviews. That is something that other people may feel differently about it. We're not really fans of it.
Lisa Burton: And in fact, yesterday when we were speaking here at the Exclusive, we took a poll, and it seemed to be that we were in the majority, so most lawyers and in-house counsel agreed with us.
Tiffany Stacy: Yeah, yeah. When you have two investigators, one can really be focused on engaging with the person that's being interviewed, the cognitive listening, while the other investigator can be taking the notes, can be also looking for those nonverbal cues that can be important. And I think that's our preference over recording the interviews.
Another approach to consider in some investigations is if there's a high risk of collusion or potentially the destruction of relevant evidence, we have led what we've called ambush-style investigations, and that's where we really are not providing any notice to the individuals that are being interviewed, and we interview them consecutively or sometimes even at the same time if again, we have more than one person that is conducting the investigation. So, we're more likely to get accurate and truthful information without that being obscured. And Lisa, what are some points relative to the privilege associated with these high-risk investigations?
Lisa Burton: So, whenever we're doing investigations, one of the questions you have to do within the company is to decide whether or not it is a privileged investigation, meaning that it is confidential and that it won't be disclosed, and the privilege will belong to the employer. Sometimes though, you're not going to want it to be privileged necessarily because of course whenever you get complaints, you have a duty to investigate and take prompt remedial action. But generally, the presumption is that when you're going to engage outside counsel, parts, if not all of it, will be privileged. That doesn't mean that you will have reports that may have the privilege waived or a summary that's going to be shared with others. One of the things you have to really think about if you are doing it internally, again, is if you are doing it at the direction of in-house counsel or, again, outside counsel.
Generally, if you are doing it internally and you are the lawyer for the company, you just have to remember which hat are you wearing? Are you doing this as a privileged part or are you treating this as business and general advice, which of course would not be privileged? Other considerations are how do you want to report it out? And again, when we're talking about a privileged investigation, you really have to think about your mental thoughts, impressions when you are...if you're the lawyer or the outside lawyer who is conducting the investigation. I think the next piece though that we really wanted to talk about is when you are interviewing the complainant, as Tiffany said, we have to look at some control over how, because you're trying to develop rapport so that there is trust. And so sometimes we have to be asked, or you have to consider.
They may say, "I want to have my lawyer present." You may say, "No." Oftentimes that is the answer. But if the answer is yes, because of the nature of it, we often liken it to if the lawyer's there, oftentimes our lawyer's there, but the lawyers are to be potted plants, right? They're just to sit there to be present. But what about if it's somebody and they ask you to bring their mother, or if they are asking to bring a friend or support person, oftentimes we will say, "Yes, but," and but is that that other person will often be outside of the room for breaks and all of those things so that the investigation, again, to the extent you're going to want to have it privileged, is in fact privileged. But again, think about that. Think about how it will work. And if you're dealing with minors, you always have to have somebody present because the minor cannot be able to give the testimony on their own.
If you have a union setting, remember you may have to deal with having a union rep there or somebody may request to use their Weingarten rights. Because we're talking specifically with trauma interviewing, it really is important to make the complainant feel comfortable and doing that in a manner that actually helps them trust you. But remember, you are the neutral outside investigator or internal investigator, so you want to be able to pay attention to all of that and not verify what they're saying as going along and saying, "Aha, aha, okay, yeah, that's terrible." You really have to be empathetic but neutral. And you also have to think about when you're dealing with somebody who has dealt with trauma that we are aware that there are a lot of things that may impact how they're telling what happened.
It could be their recollection. They could not have a straight memory that takes us through from point A to point F going through each of the aspects. They may have an affect that is somewhat dull. They also may not remember things specifically. And oftentimes we know in trauma somebody might fight; somebody might try and flee, or somebody may freeze. And that can do a lot with why a person does not fight back or run away. And when you are doing trauma-informed interviewing and all of that, you really need to keep your questions neutral. I always like to start with, to the extent I'm giving what lawyers call an Upjohn warning, I try and explain why I am there. I explain that I'm part of this investigation for the company. I thank them for being present. I reiterate that the whole reason why we have these policies, or these hotlines, is so that we can respond quickly and fairly.
And so, I try to make sure I am setting that stage. Remember your body language. If you're sitting there with your arms crossed, that is not going to be an inviting way to communicate. And I often remember to say things that, "I understand this is difficult to speak about, please tell me as best you can, what you experienced." Oftentimes, it's very good to say, "What else do you remember?" And also, if you're having to ask really tough questions, think about doing it in a manner that interjects a third party. Because if you do have certain questions that are the tough questions, you don't want to say that you are asking and doubting this, but you may be saying, somebody might ask you about your decision to wait weeks before telling us about this. Someone may ask, "Why didn't you tell the police?" or "Why didn't you share it with somebody else?" So, remember, that's all part of it, and it will impact your credibility determinations as to the person who's bringing the complaint. Tiffany, what about when you're dealing with the accused?
Tiffany Stacy: Oftentimes you are interviewing the person accused of wrongdoing last in the interview process, assuming there are other witnesses other than the complaining party. But when you are interviewing the accused, of course, if a lawyer is conducting the investigation, there is that Upjohn warning there, too. But I think it's important and particularly important to make very clear that as an attorney you are working for the company, but you are not that individual's attorney. Sometimes the accused will ask if they need an attorney, and obviously, I'm not there to give advice; I'm there as a fact finder, but I would just generally respond that that is the individual's decision to make. That's something that they're free to do. That's not something that the company would require or pay for. When you're interviewing the accused, I think much like if you're an attorney who has taken a deposition before, you have probably found that in some instances, letting there be silence can be your friend.
There is a natural propensity for individuals to want to fill the dead air, so to speak. And you might have someone start to volunteer information that maybe you wouldn't have otherwise thought to ask about or that could be insightful in coming to a determination. I think you may find, depending on the demeanor of the accused, if they are getting defensive, if they are providing inconsistent information, you may very well find yourself really putting on the hat of someone taking a deposition and start to ask more pointed, direct, harsh questions to get to the bottom of what was going on.
Well, we hope that you found some of these tips helpful. I know specifically with the trauma-informed interviewing, you have to approach it a little bit differently even if the individual is not, and by individual, I mean the person making the complaint. Even if you find that you cannot substantiate the allegations, there's undoubtedly, or oftentimes, individuals making those complaints have been subjected to trauma at some point in their life, even if not in the immediate instance. And so, many of those interview techniques are going to be really helpful in eliciting the information that you need to come to a conclusion. And thanks again for listening to our podcast. There will be other great podcasts that will be recorded here at the Exclusive concerning other aspects of investigations. And thank you for your time.
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