Best Practices for Assessing Witness Credibility in Workplace Investigations

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One of the most important and often most challenging tasks of the workplace investigator is to make credibility determinations about witnesses.  Over the years, a common mistake I’ve seen investigators make in investigating allegations of workplace misconduct is failing to make findings of fact because they were not comfortable making the necessary credibility assessments where there were conflicting statements made by the people interviewed.   Good and well-trained investigators, however, recognize that credibility assessments are not only a critical part of their responsibility but also understand the importance of documenting how such credibility assessments were made.

Before I set forth some best practices for assessing witness credibility, I think it’s also helpful to revisit the “honest belief” defense.  Under the “honest belief” defense, if an employer can demonstrate that it had an honestly believed, nondiscriminatory reason for taking the employment action being challenged, an employee cannot establish that the offered reason is pretextual simply because the employee may be able to prove subsequently that the employer was wrong in its honest belief.   I don’t review the “honest belief” defense here as some type of “get out of jail free” card for employers but rather as a reminder of the standard of review that courts will use in reviewing an employer’s decision that is later alleged to be discriminatory.

So, how does an investigator assess witness credibility?  There is a lot of discussion in the literature on this topic, but one of the most pragmatic approaches I’ve suggested over the years is to turn to the pattern jury instructions in the relevant jurisdiction on witness credibility and use them as a guide.  Why?  It goes back to anticipating the “honest belief” defense discussed above.  The investigator is not charged with making factual findings beyond a reasonable doubt or that are 100% accurate, but rather making factual findings based on a well-done and thorough investigation.  The employer will then take or not take an employment action based on its “honest belief” of the facts as established by the investigation.  Utilizing the relevant jurisdiction’s standard jury instructions provides an easily available and defensible checklist should the investigator/employer later have to defend the process used to assess credibility.

Generally, an investigator will be able to locate the applicable pattern jury instructions with a simple “Google” search.  By way of example, I’ve set forth below the Eleventh Circuit Federal Court Pattern Jury Instructions for Criminal Cases (2010).   The Eleventh Circuit includes Georgia, Florida and Alabama.

Credibility of Witnesses

When I say you must consider all the evidence, I don’t mean that you must accept all the evidence as true or accurate.  You should decide whether you believe what each witness had to say, and how important that testimony was.  In making that decision you may believe or disbelieve any witness, in whole or in part.  The number of witnesses testifying concerning a particular point doesn’t necessarily matter.

To decide whether you believe any witness I suggest that you ask yourself a few questions:

• Did the witness impress you as one who was telling the truth?

• Did the witness have any particular reason not to tell the truth?

• Did the witness have a personal interest in the outcome of the case?

• Did the witness seem to have a good memory?

• Did the witness have the opportunity and ability to accurately observe the things he or she testified about?

• Did the witness appear to understand the questions clearly and answer them directly?

• Did the witness’s testimony differ from other testimony or other evidence?

Source:  http://www.ca11.uscourts.gov/documents/jury/crimjury.pdf

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Workplace Investigations Group has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

 

‘Tis the Season: Are You Ready for Political Conflict in the Workplace?

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According to a survey by Career Builder, more than a third of employees discuss politics at work.   When the survey was done in March of this year, 46% anticipated they would discuss the presidential election this year with co-workers.  Of those workers who have discussed politics at work, 23% reported they had a heated discussion or fight with a co-worker, boss or someone else higher up in the organization.

In addition to the productivity drain, political conflict in the workplace also has the potential to increase liability risks when you consider some of the topics being debated this election:  Exhibit A – What is a “legitimate rape?”  Exhibit B:  Romney Ad:  Obama is waging “A War on Religion.”  It is easy to imagine a scenario where an employee is offended and depending on the circumstances points to something that was said during these debates as evidence of harassment or discrimination.

According to a poll conducted by the Society for Human Resource Management in 2008, only 25% of employers have a written policy addressing political activities in the workplace.  An additional 10% reported having an unwritten policy on political activities.

Recognizing that political discussion/debate is going to happen at work and will likely intensify over the coming weeks, employers might consider a company-wide communication that either reminds employees of the existing company policy on political activities at work or discusses more generally the importance of engaging in respectful interactions at work, including in any political discussions.  This is also an opportunity to remind employees of how to report workplace concerns and of the policy of non-retaliation.

“First, Do No Harm” – A Call For NLRB and EEOC Guidance

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In reflecting on the proper role of confidentiality in workplace investigations following the Banner Estrella Medical Center NLRB decision, I am reminded of the fundamental principle all medical students are taught – “First, do no harm.”  This principle is a reminder to avoid making something worse with your medical intervention – especially when the intervention carries an obvious risk of harm but a less certain chance of a benefit.

In the context of investigations into alleged workplace misconduct, in particular into allegations of sexual harassment, the complaining employee often wants confidentiality.  Indeed, the EEOC has identified confidentiality as an “important element” of a harassment complaint procedure.

In Banner Estrella Medical Center, the NLRB reminded employers that they should not, in the name of conducting confidential investigations, unduly restrict an employee’s protected rights under the NLRA (as well as Title VII and other laws) to talk with each other about workplace conditions and job-related problems.  Unfortunately, the decision provided only limited guidance on how to decide when and to whom confidentiality instructions are appropriate.  The result is that employers and their employees who often want investigations to be confidential are, in some ways, left worse off in the wake of the NLRB’s “intervention.”

Regardless of what side of the debate you are on as it relates to the proper role of confidentiality in investigations, I think everyone can agree that there is no easy bright line rule on this one.  What employers and employees need is thoughtful guidance on this topic from both the NLRB and the EEOC.  In fact, what I’d like to see the two agencies do is work together to provide joint guidance on this topic given the complexity of workplace investigations and the employment laws.

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

 

 

 

 

$3.5 Million Lesson: Workplace Procedural Fairness is Important

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The $3.5 million jury verdict last week in favor of a former lifeguard at a swimming pool in Washington D.C. is a striking example of why organizations need to consider procedural fairness in how they respond to complaints in the workplace. The lawsuit was brought by Carmen Jean-Baptiste, a 43-year-old who began working as a lifeguard at the Department of Parks and Recreation in Washington D.C. for $13.50 an hour in April or May of 2006.

In the lawsuit, Jean-Baptiste alleged that shortly after she started working, her supervisor began to harass her by asking her on dates and whether she “had a man.” When she rebuffed him, the harassment intensified and she reported the behavior to a half-dozen supervisors and also filed a written complaint. Shortly after filing a written complaint in October 2006, Jean-Baptiste was fired. Her attorneys alleged that the firing was in retaliation for complaining about the harassing conduct.

After a one-week trial, the jury found in Jean-Baptiste’s favor and awarded her $3.5 million.  In a move that neither I nor the federal judge who presided over the case and has 24 years of experience have ever seen before, the jury also delivered an unusual “addendum” of recommendations urging the Department of Parks and Recreation to institute training to prevent sexual harassment of employees and to better handle complaints when they arise. The jury also requested a review of the employer’s response to Jean-Baptiste’s complaints of harassment.

Here is what the jury said in its handwritten addendum:

“We, the jury, in the Carmen Jean-Baptiste, plaintiff vs. District of Columbia, defendant, respectfully recommends the following be included as part of the damages award in this case:

  • The defendant District of Columbia must begin an EEO training program for all DPR managers and make this training available to all new managers, including temporary or summer managers;
  • The defendant must rewrite DPR personnel policies to remove ambiguities about the EEO complaint and investigation processes and clarify what steps must be taken in an investigation of an EEO complaint.
  • The defendant must initiate a review of the actions, or lack of action, taken by all DPR employees and managers at the Takoma Pool and Aquatic Program from May 2006 through January 2007.  The review should be conducted by a person or persons with the power to issue a report to the Mayor of the District of Columbia with recommendations for appropriate action, up to and including dismissal of any current employee who is found to have violated DPR policies.”

To view the actual jury’s verdict form and the handwritten note click here:  Jury verdict form. You will have to scroll to the bottom of the pdf document to view the handwritten addendum.

Insights for Employers

Some readers might be asking themselves why I’m discussing “procedural fairness” and not the law governing claims of sexual harassment and retaliation.  I’m writing about procedural fairness vs. a more traditional legal analysis because if the employer had responded to Jean Baptiste’s internal complaints about the harassment in a way she believed to be fair she would never have gone to an outside lawyer — never have filed a claim with the EEOC — never have filed the lawsuit.   Obviously, Jean Baptiste did not perceive the employer’s response to be fair and the jury’s sua sponte delivery of the addendum of instructions tells us it didn’t think so either.

The term “procedural fairness” or “procedural justice” as it is sometimes called is a dispute resolution concept that provides an employee a fair process. Professor Tom Tyler, a leading researcher in this area who teaches in the psychology department and the law school at NYU, suggests that there are four basic expectations that encompass procedural fairness:

  • Voice – the ability to participate in the review of the complaint by expressing their viewpoint;
  • Neutrality – consistently applied rules or legal principles, unbiased decision  makers and a “transparency” about how decisions are made;
  • Respectful treatment – individuals are treated with dignity and their rights are protected;
  • Trustworthy decision makers – decision makers are benevolent, caring and sincerely trying to help the parties to the dispute – this trust is generally garnered by listening to individuals and by explaining the decisions being made.

Professor Tyler’s research in procedural fairness consistently concludes that people are more willing to accept an undesirable outcome (read less likely to sue) when they believe that the decision making process was procedurally fair.

Increasingly, smart employers are recognizing the value in ensuring they have internal processes in place to respond to an employee’s complaint that not only meet the minimum “legal” standards of compliance but also are perceived as procedurally fair by the workforce.

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Workplace Investigations GroupWorkplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com