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EMFIG welcomes Jeannette Walker Kornreich

Jeannette Walker Kornreich is an employment lawyer with over 25 years’ experience working in both the public and private sectors. Jeannette joined Employment Matters LLC as a Senior Investigator in July 2018 after 17 years of experience working as in-house legal counsel for the Colorado state courts with a primary focus in civil rights and employment law matters. Before then, she worked in the Labor and Employment Law Section of the Colorado Attorney General’s Office for several years. Jeannette is a former clerk to the Honorable Charles D. Pierce of the Colorado Court of Appeals and a trained mediator.

As the sole legal advisor to the Colorado state courts’ Division of Human Resources, Jeannette’s background includes extensive experience working with all levels of management and the judiciary to assess potential legal liability regarding employee relations concerns. Working closely with Human Resources in conducting workplace investigations and providing advice, coaching and training on applicable federal and state laws, as well as conveying best practices for managing employee conduct issues, has primed Jeannette’s current focus in workplace investigations. Jeannette’s immediate demonstration of proficiency, professionalism, and a seasoned approach to conducting impartial workplace investigations at EMFIG makes her a welcome addition. She is also a member of the Association of Workplace Investigators (AWI).

“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.