The Dos and Don'ts of Conducting Internal Investigations

Transcription

1 The Dos and Don'ts of Conducting Internal Investigations November 10, 2015 Booker T. Evans, Jr. Partner Denise M. Keyser Partner Marjorie J. Peerce Partner Elizabeth J. Lee Associate

2 Best Practices for Conducting Internal Investigations Engage outside counsel to preserve confidentiality Establish a clear and well-followed plan and commit it to writing at the outset, subject to change as new issues arise Explain to employee witnesses and, when necessary, provide to them in writing a statement that the attorney conducting the investigation does not represent the employee personally If government investigation ensues, the company should continue its internal investigation 2

3 Employer Access to Cell Phones and Computers There is a distinction between a cell phone furnished by the employer and a personal cell phone used for workrelated activities Employers are subject to the Electronic Communications Privacy Act of 1986 Monitoring internet activity or content employers must be wary of the Stored Communications Act (SCA) 3

4 Best Practices for Implementing New Policy Going forward, it is important to notify employees that the employer will be authorized to access the employee s personal information Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548 (SDNY 2008) - Accessing personal accounts - Employers need to exercise caution when investigating misconduct in order to avoid intrusions on personal privacy rights 4

5 Whistleblowers Investigation may start with whistleblower Tread carefully with whistleblowers - Laws protect whistleblowers - Perception of pressure - Whistleblower s cooperation important A whistleblower can be disciplined for refusing to participate in an internal investigation. See Merkel v. Scovill, Inc., 787 F.2d 174, 179 (6th Cir

6 Why is This Important? Failure to effectively handle whistleblower internally may result in: - Fines, - Penalties - Loss of government contracts/access to government programs - Prison time - Employment claims, ie. retaliation 6

7 Laws Protecting Whistleblowers False Claims Act Dodd-Frank Whistleblower Program IRS Whistleblower Law State/local whistleblower laws Anonymity 7

8 Whistleblowers: Your Investigation s Structure Comply with whistleblower laws to avoid problems you control Public disclosure always a possibility. Whistleblower makes self-incriminating statements? - Get an employment specialist involved Internal v. external whistleblowers Don t want the former to become the latter 8

9 Whistleblower Pointers from the Trenches Common whistleblower motivations: 1. Moral or ethical reasons; 2. Looking for money or other benefit. Emotions with whistleblowers often run high: - Need someone who is not emotionally invested - Unpredictable circumstances 9

10 Conducting Employment Investigations in the Workplace 10

11 Typical Investigations Enforce policies - Sexual and other forms of harassment - Discrimination - Workplace conduct (theft, workplace violence, code of conduct, etc.) - Safety (drugs, alcohol, etc.) Ensure compliance with law and/or regulatory agencies - DOL (FLSA, OSHA, etc.) - EEOC (Title VII, ADA, ADEA, FMLA, etc.) - DOE (Title IX, Title VI) 11

12 The Dos Make a plan - What? Clearly articulate scope/origin of investigation Re-examine - Why? Enforce policy Legal defense Limit damages 12

13 The Dos - Who? Choose carefully - When? Immediately, if not sooner - How? Beware of privilege issues 13

14 The Dos Give warning to witnesses - No retaliation - Explain counsel s role Must do even if investigation not subject o privilege - Confidentiality Document everything and collect all evidence Make a decision Take remedial action, if necessary 14

15 The Dont s Disclosure of information Don t break chain of custody of physical evidence Overreact to lying witnesses Ignore retaliation Forget to keep complainant / accused updated Ignore potential claims of accused Be afraid to call the cavalry 15

16 The Yates Memo New, Potentially Game-Changing Policies 16

17 Six Factors 1. If a corporation wants cooperation credit, must identify all and provide all information about responsible individuals, regardless of position 2. Prosecutors will focus on individuals from the onset of the investigation 3. Prosecutors on the civil and criminal side of DOJ will talk to each other from the beginning and throughout the investigation 17

18 Six Factors 4/5. Delays in the corporate investigation will not delay resolving or proceeding on cases against individuals, and the US Attorney or Assistant Attorney General in charge must personally approve deviations 6. Significant broadening of the civil enforcement strategy, including pursuing individuals even if they cannot pay judgment 18

19 Takeaways Scope and timing of investigations - Who conducts them even more critical - Upjohn warnings essential - Well-crafted investigation Waiver of attorney client privilege considerations Self reporting considerations paramount Effect on compliance revisions D and O insurance Indemnity provisions 19

20 Thank You! If you have questions, please feel free to contact any of today s speakers: Booker T. Evans, Jr. evansb@ballardspahr.com Denise M. Keyser keyserd@ballardspahr.com Marjorie J. Peerce peercem@ballardspahr.com Elizabeth J. Lee leee@ballardspahr.com