Can a “Privileged” Investigation also be “Independent?”

I was  honored to speak at the Colorado Bar Association’s Employment Law Section luncheon on February 18, 2016. A question was raised there that has been replaying in my head: “How can you claim that a privileged investigation is also independent?” To stop the replaying of actual or imagined dialogue in my head, I offer this post. My revised short answer is, “Pretty easily.” Before expanding on that I’ll summarize a couple points from the presentation to provide context. Absolutes are dangerous, but context always matters.

The Investigation Expectation – Workplace investigations are now inextricably intertwined with an employer’s exercise of reasonable care in response to the identification of discriminatory conduct, and an expanding host of other potential liabilities and compliance expectations.

Fundamentals – Few rules define the investigation mandate. An appropriate investigation must be prompt, impartial, and thorough. While timeliness and (more so) thoroughness come up, investigations are most often criticized for alleged bias or a lack of impartiality. “Objective,” “neutral,” and “independent” are other synonyms of “impartial” commonly used to describe the expectation. Here I note a personal preference for descriptors other than “independent,” which I like to reserve for those agencies that possess independent authority to investigate employers, such as the EEOC, NLRB, OFCCP or various state and federal law enforcement agencies. The distinction supports an important teaching point for me – in three parts.

1. Employers engage the investigation. It is the employer’s responsibility to engage an appropriate investigation no matter who investigates (inside or outside investigators in their many forms). Successful, effective investigations get to the truth of the matter at issue; and also demonstrate a clear understanding of the scope of issues for investigation.

2. Investigation scope is the employer’s prerogative.

3. Within the defined scope of issues for investigation it is my job as investigator – my professional responsibility – to demonstrate an investigation that is prompt, impartial and thorough – and meeting that end requires employer cooperation; reasonable access to the employer’s people and information. This is how “independence” is reasonably understood in this investigation context. In other words, the neutral workplace investigator does not have independent authority to investigate outside the scope established by the engaging employer, but does have an obligation to demonstrate a thorough, adequate, and otherwise reasonable (“independent”) investigation within that scope.

Attorney-Client Privilege and the Attorney Work Product Doctrine – Employment attorneys provide employers with legal advice, as well “best practices” counsel. One primary purpose of investigation interviews and investigation reports is to enable the provision of confidential legal advice to an employer-client by its attorneys. Two recent decisions from influential federal circuits underscore that, consistent with “the investigation expectation,” regardless of the absence of legal counsel in a fact-finding investigation or a dual purpose of business advice, if the investigation helps the lawyer give legal advice then the privilege applies. The second decision also explains that attorney work product protections that apply to documents prepared “in anticipation of litigation” can relate to the prospect of litigation, too, rather than exclusively active or threatened (by demand letter) litigation. See In Re Kellogg Brown & Root, Inc. et al., Petitioners, 756 F.3d 754 (D.C. Cir. 2014) and 796 F.3d. 137 (D.C. Cir. 2015); In Re General Motors LLC Ignition Switch Litigation, 80 F.Supp. 3d 521 (S.D.N.Y. 2015).

The point here is that it is only prudent to take steps at the inception of an investigation to preserve these protections. It does not matter that in the vast majority of cases the employer will waive the protection by using the investigation to demonstrate its exercise of reasonable care. Nothing about properly preserving these protections at inception of the investigation corrupts an investigator’s impartiality or independence, if you prefer. To suggest that just because an attorney directs the performance of an investigation consistent with privilege or work product protections that somehow equates to orchestration of the entire process is unpersuasive.

 

Tip of the Iceberg? – Workplace Assessment Tips

Workplace investigations and workplace assessments look a lot alike. The process of interviewing and generating a comprehensive report is usually the same for both. The term “assessment” exists to distinguish it from a garden-variety investigation. Investigations answer, “What happened?” Assessments answer, “What is going on?” Assessments are proactive where investigations are reactive. The distinction is primarily one of scope. The scope of an investigation is driven by discrete allegations of the complainant(s). The scope of an assessment is wide-open by comparison, which makes conducting assessments challenging. There is only a problem or suspicions of a problem.  Here are five tips to keep in mind:

1. Avoid “scope creep” by actively managing the scope of issues involved throughout the process, and especially at the start. Where initial identification of scope is lacking, interviews resemble assisting employees in responding to the question, “What would you like to complain about in your workplace?”

2. Identify the primary issues for attention. These are often reflected in three to five questions to address with each participant. Scope modifications may develop based on provision of additional concerns that should be supported by facts, rather than speculation.

3. Preserve the expectation that employees use complaint procedures. Engaging an assessment is an exceptional measure that does not displace your EEO policy or like policies that encourage identification of misconduct. It’s a good idea to say so.

4. Manage expectations appropriately. Employee identification of workplace concerns creates a corresponding expectation of employer action. Assessments often necessitate qualifying the organization’s intention to take action regarding ancillary concerns.

5. Prohibit retaliation for good-faith participation. As in investigations where the applicability of legal prohibitions against retaliation are not always clear, the integrity of a workplace assessment warrants the prohibition. If concerns justify engaging an assessment, it follows that no one should be penalized for participating.

Engaging an assessment places a high degree of trust in the investigator to manage scope appropriately. The goal of the final product is to provide insight based on facts and informed perspectives to support improved communications, strategic management, coaching, and corrective action. Where an assessment only resembles an extensively documented employee-opinion survey, it has gone off course.

Good Will Hunting and Workplace Investigations: Vigilance Against Bias

I like to ask the “favorite movie” question and Good Will Hunting is a popular pick in my experience. To Good Will Hunting fans I sometimes present a “did you notice” question.

It starts with recollection of a favorite scene in the movie – when Will (Matt Damon) steps into Chuck’s (Ben Affleck’s) conversation at a bar with a Harvard Grad student intent on sabotaging Chuck’s attempt to meet two “Harvard hunnies” (Minnie Driver and friend). Will proceeds to dress him down as a parrot of published works on American history without an original thought of his own. Juxtapose that scene with Sean (Robin Williams) and Will’s “Taster’s Choice moment between guys” on a bench overlooking a pond. Will aggravates Sean to violence in their previous meeting, but now Sean explains his calm after realizing that Will doesn’t know what he is talking about, even if Will’s genius enables his command of any subject still short of personal experience: “I can’t learn anything from you that I can’t read in a [expletive] book.” It’s the same valid criticism that Will levels at the Harvard Grad student and provides a lesson in humility. Discovering the hypocrisy of our own thinking or behavior can make for profound revelation. Ideally, it inspires responsible cautiousness and self-examination in the future. That life lesson is a great tool for workplace and school investigators – and managers and executives too.

Conducting workplace investigations demands humility more than self-assurance. The most effective and reliable investigators perceive themselves small rather than big.

Starting from a stance of “I don’t know” helps avoid assumptions and drives the initial, primary goal of hearing each side of the story before reaching conclusions. From there, acknowledge your susceptibility to biases. Biases derive from implicit reliance on stereotypes born from individual life experiences, environment, and culture. Every point of view is a view from a point and no person escapes the human condition. Any absolute denial of personal prejudice, conscious or unconscious, is at best unpersuasive and at worst dishonest.

The on-going study of bias is fascinating. The multiple forms of cognitive bias, like Confirmation Bias and Halo Effect, as well as Implicit Association Tests and Heuristics are engrossing, even to laymen – at least this layman. The reliability of implicit bias evidence in employment discrimination litigation is far from settled with strong opinions on both sides of the issue and separate legal-eagle debate over the centrality of causation versus discriminatory intent for disparate treatment claims. In any case, the good news is that social science suggests that individuals can control even implicit biases with various forms of conscious effort – including articulating opinions or decisions in writing (my personal favorite). Self-awareness and recognition of our essential subjectivity supports vigilance against bias in the workplace, investigations, and in life.

“Neutral” Investigators Should Disclose Their Responsibility to Resolve Conflict: Fact-finding versus Fact-gathering

Workplace and school investigators often begin investigation interviews by describing their role as a “neutral and objective fact-finder.” The primary point to make is that the investigator is not biased. More than anything, objective and systematic interview process demonstrates the investigator’s intent to first understand each participant’s side of the story. That’s a good thing, but it is not the whole story either. As conflicting information may develop from different sources, so does the investigator’s obligation to resolve those conflicts. (I like to say that the degree of obligation to resolve conflict varies directly with the severity of the alleged misconduct.)

Investigations charge the investigator with evaluating all the evidence toward reasoned findings that evaluate conflicting information around suspected or alleged misconduct. The “whole story” is that, strive as the investigator should to understand individual perspectives during early fact-gathering, making findings of fact to conclude the process often means that someone’s version of events is deemed most persuasive. Sometimes, though, an investigator or manager is engaged to conduct “fact gathering” only. There, conclusions as to whether it appears “more like than not” that alleged misconduct occurred are omitted. Credibility analysis and “weighing” of the evidence, too, may be excluded.

Whether the investigator will make findings of fact versus simply gather facts by taking witness statements and collecting relevant evidence is a huge distinction – and one that merits attention in the interview context as part of the investigator’s introductory comments. (Confidentiality expectations, as may be applicable, and retaliation prohibitions are other common “ground rules.”) My suggestion is to clarify the ultimate “fact-finding” purpose when addressing an expectation that participating employees be truthful. Where authentic “he-said, she-said” scenarios exists, the only thing an investigator can be certain of is that someone is not telling the truth. That backdrop helps explain an expectation of truthfulness in investigation interviews and allows the investigator to impart that he or she has a responsibility to resolve conflict in good faith after properly evaluating the evidence.

Caselaw support for an employer’s obligation to resolve conflicting employee accounts of misconduct through a thorough investigation that supports good-faith decision-making comes from a recent California Court of Appeals decision. (See Mendoza v. Western Medical Center of Santa Ana, 222 Cal. App. 4th 1334, 166 Cal. Rptr. 3d 720 (2014).) In Mendoza, the court’s identification of investigation defects, like interviewing the complainant and respondent simultaneously with an inexperienced investigator, underscores that workplace investigations are considered integral to an employer’s exercise of reasonable care. A snippet from oral argument included in the decision makes the central point addressed here (Mendoza at 14, n. 4.):

“… defense counsel asked (perhaps rhetorically) just what employers were expected to do       when faced with a scenario in which two employees provide conflicting accounts of inappropriate conduct.

    “Our answer is simple: employers should conduct a thorough investigation and make a good faith decision based on the results of the investigation. Here, the jury found this did not occur.”

Importantly, too, don’t underestimate the value of fact gathering alone. Skilled fact gathering can enable your most trusted counsel to assess the matter without getting entrenched in an investigation process directly.  The necessity of a formal investigation (with “fact-finding” and all) is not always clear at the onset. Initial fact gathering is always a precursor and might reveal that a formal investigation is not necessary. Investigations are inherently disruptive. Skilled investigators make investigations as least disruptive as possible. HR best practice is to avoid unnecessary investigations. When investigations are necessary, adequate investigation demands taking responsibility to resolve conflicting information in good faith.

NFL DeflateGate Privilege Arguments

If you do not already follow Lorene Schaefer and the Workplace Investigations Group, I recommend doing so. This post is a limited response to Lorene’s post on the subject. There, she comments on journalist Daniel J. Flynn’s query, “How can the NFL simultaneously characterize Ted Wells as ‘independent’ and correspondence related to his investigation as ‘privileged’ because of an attorney-client relationship?” Lorene explains why she thinks the privilege will not hold up. I agree with that conclusion, but see a different question at issue.

Privilege and Work Product Doctrine protections in investigations are interesting, and always complicated, issues. I agree that waiver results even assuming the attorney-client privilege applies if the report is publicized, i.e. not kept confidential. I’m most interested in my reading of Mr. Flynn’s (the other one’s) question. Are circumstances supporting privilege and the asserted “independence” of an investigation mutually exclusive? In other words, if the report was not disclosed, but the NFL asserted publicly that the investigation was “independent, full, and fair” does that alone waive what is otherwise privileged? I don’t think it does.

My closest reading of the case law in this area comes from the employment discrimination context. “At-issue” waivers predominate there where employer’s introduce the investigation as evidence of its exercise of reasonable care or remedial action to stop and prevent misconduct. The context here is very different, including presentation of the privilege question to the New York Federal Court at the NFL’s request. It’s not clear to me whether the NFL is saying, “We are just following the findings of this ‘independent’ investigation” or “The impartial investigation that we engaged is one of multiple sources of evidence, including Mr. Brady’s separate presentation of evidence, that we relied on to reach a good faith conclusion.” There is a big distinction there.

I try to reserve “independent” investigation to describe those investigations that take place under the authority of law enforcement or a governmental enforcement agency like the EEOC, OFCCP, and NLRB. These investigations occur whether the agency or individuals under investigation like it or not. I prefer “appropriate” investigation to describe one that is prompt, impartial, and thorough while still acknowledging that the investigation is occurring at the organization’s direction and expense. Unlike in the employment context, the NFL’s investigation is not remedial action that may resolve the issue by helping to stop and prevent similar misconduct. It will be interesting to see what happens next.

Promoting the Investigations Profession

The Denver Local Circle of the Association of Workplace Investigators meets Thursday, September 3rd from 4:30 to 6:00pm at Liz Rita’s office -2401 15th St., Set 300. After socializing, we will share and discuss investigator engagement agreements. This is a great opportunity for internal investigators to learn more about AWI and engaging third-party investigators. Email Liz or me to register: or . This invite modifies the following earlier post.

The expectation of appropriate investigations at workplaces and on campus has required employers and schools to build internal human resources to meet the need. Frankly, all situations that need investigation do not justify retaining an outside investigator. These facts make associations and resources that promote the profession to all levels of experience and would-be investigators invaluable. I am a sustaining member of the Association of Workplace Investigators. I serve on its Guiding Principles and Member Benefits committees and work with my colleague Elizabeth Rita to convene the AWI Denver Local Circle. Check out www.aowi.org to learn more about this excellent organization and it valuable resources. The Denver Local Circle meets bi-monthly and non-members are welcomed to attend to learn more. Just contact Liz or me to register.

The Workplace Investigations Group led by Lorene Schaefer is another excellent resource. WIG offers a national directory of investigators with at least ten-years experience.

There are many decisions to make toward conducting an “appropriate”investigation. This is a developing profession that is well served by individuals and groups dedicated to promoting best practices and investigation integrity.

Welcome to EMFIG.com

Mark Flynn workplace investigator attorneyFor my first entry, I want to say a little about my business and how it came to be – kind of a vision statement too. To start this endeavor I left my job; my very stable, fine job with an outstanding organization. I recognized that I was roughly half-way through my career. I asked of myself, “What do I want to do from here?” “What example do I want to make for my family?”  I want to run a good business that delivers quality work through exceptional internal and external customer service and continuous improvement. I want to focus on workplace investigations because it is valuable work I enjoy, and I believe that I am good at it. Whatever the underlying issue, what ultimately makes a good investigation is the intent to get it right. That means getting to the truth of the matter. Of course, we all have our individual perspectives on what is “true,” which will be a recurring theme in my posts. For purposes of this post, I rely on one of the few essential truths that most if not all people agree on: “Time flies.” (I will add my personal addendum here that, like gravity, the speed at which time flies speeds up over the span of our lifetimes.) From there insert, “Carpe diem,” “Find your contentment” or whatever works for you.