Picking Your Investigative Team

1. Workplace Investigations:How the Employer Should Do Them and How the Plaintiff Can React to ThemJennifer M. TrulockUniversity of Houston Law FoundationAdvanced Employment LawJune 2007

2. Picking Your Investigative Team • Investigators to Use • The right "investigative temperament" • Call "central casting" • Lawyers--Maybe, but think through the evidentiary and privilege issues

3. Investigators NOT to use • The accused • Employees with vested interests in outcome • Employees lacking restraint • Employees with the wrong personality • Former law enforcement personnel • HR representatives--some

4. Train Investigators to Develop the 5 Major Types of Evidence • Direct Evidence • Circumstantial Evidence • Anecdotal Evidence • Statistical Evidence • Comparative Evidence

5. Things to Do Before the Investigation Begins

6. Suspend the Employer's Record Retention Policy as to any Possibly Relevant Documents/Information

7. Collect, Preserve and Examine All Computer Resources • Computer Network • Removable disks and CDs • PCMCIA Cards • Personal Digital Assistants • Temporary Files (including Internet files) • Swap Files • Thumb drives, external hard drives • Metadata • Audit trails, computer logos and access lists • Cache files, browser and cookie histories • Tape back-ups

8. Promptly Invoke the Attorney-Client Privilege Anticipate and Address "Potential Conflict" Issue

9. Clarify Whom the Investigating Lawyer Represents

10. Reminders To Employee Witnesses: No Retaliation No Promise

11. Identify and Isolate All Potentially Applicable Policies

12. Anticipate "Ex Parte" Communications

13. General Considerations for All Investigations • Investigate Complaints Promptly and Thoroughly • Questions to Ask in Harassment Cases • Were the sexual advances welcomed? • What is the complainant's attitude? • What is the complainant's emotional character? • What do we know about the accused? • Is the complaint late?

14. Special Considerations Relative to Union Settings • Johnnie's Poultry Statement • Weingarten rights

15. Privacy Concerns Raised by Organizational Investigation Techniques • Drug Testing • Polygraph Testing • Workplace Searches • Custodial Interrogations

16. Privacy Concerns Raised by Organizational Investigation Techniques • Surveillance, monitoring, eavesdropping, wiretapping • Hidden cameras • Monitoring of computer operations

17. Privacy Concerns Raised by Organizational Investigation Techniques • "Informers," "spies," or "plants" • Lawyer participation in deception by undercover investigators

18. Privacy Concerns Raised by Organizational Investigation Techniques • Fair Credit Reporting Act Issues

19. Five Management Rules of Thumb(and One Suggestion)

20. 1. Discourage Electronic Mail Communications • Informality of electronic mail results in imprecise/incomplete inquiry and (possibly) bad advice • Confidentiality of electronic communications may not be assured

21. 2. “No Good Deed Goes Unpunished”

22. 3. “Trust Everyone . . .But Cut the Cards”

23. 4. “Treat Like Cases Alike; Treat Different Cases Differently”

24. 5. “Assume Everything is ‘On the Record’”

25. One Suggestion: When In Doubt, Call Your Lawyer.

26. MOSCOW LONDON NEW YORK WASHINGTON DALLAS AUSTIN HOUSTON RIYADH DUBAI HONG KONG