Employee Relations Insight

Minnesota’s highest court has issued its opinion in Lee v. Fresenius Medical Care, Inc. This case addresses the question of whether an employer can attach conditions to an employee’s being paid for accrued but unused vacation leave.

Susan Lee worked for Fresenius Medical Care, and had accrued unused paid time off. Fresenius terminated Lee for alleged misconduct. The Fresenius employee handbook provided:

Unless otherwise required by state law, if you do not give acceptable notice, you may not be paid for earned but unused PTO, and you may not be considered eligible for re-employment. In addition, if your employment is terminated for misconduct, you will not be eligible for pay in lieu of notice or payment of earned but unused PTO unless required by state law.

Fresenius denied Lee payment for her unused PTO; Lee sued, arguing that, because she had earned the PTO under the employer’s policy and because accrued PTO is a type of wage, Fresenius violated a Minnesota wage payment statute by refusing to pay for the unused time.

The Minnesota Supreme Court ruled that employers are not required to offer vacation leave or pay in lieu of leave. If they do extend such an offer, they can define eligibility for the leave or payments as they wish, so long as the policy does not violate any law. For example, an employer could offer vacation leave so that it accrues at a certain rate each month, but condition the use of the leave on approval by a manager; or an employer could limit the carryover of leave from one year to the next and require that most or all of an employee’s available leave be taken within some period of time; or—as in the Lee case—an employer could require a minimum notice of termination before the employee is entitled to be paid for accrued but unused leave, or even prohibit such payments completely if the employee is terminated for cause.

In Lee, the Court ruled:

[W]hen employers choose to offer paid time off as a benefit, employers and employees can contract for the circumstances under which employees are entitled to paid time off and payment in lieu of paid time off, so long as the contract provisions are not prohibited by or otherwise in conflict with a statute.

The Court essentially adopted its now-familiar analysis of how an employee handbook can become a binding contract. If the policy text is sufficiently clear, if the employee has sufficient notice of the policy, and if the employee thereafter signifies his or her acceptance of the policy by continuing to work for the employer, then the policy may be contractually binding.

Since the Supreme Court announced this “unilateral contract” approach to employee handbooks in 1983, most employers with handbooks have attempted to avoid any potentially binding effect by plainly stating that the provisions of the handbook are not intended to form a contract. The Lee case, however, supports the better practice of disclaiming the contractual effect of only some provisions while emphasizing that certain other provisions are binding, including for example the limitations on vacation leave or pay.

The Lee case had a strenuously argued dissent. The dissenting judge wrote that, if an employer’s policies define how vacation leave is earned, then once it has been earned it cannot be taken away without constituting an unlawful forfeiture. The majority rejected that analysis, finding instead:

[E]mployers may offer, and employees may accept, a contract provision that attaches conditions to the right to accrued vacation “wages,” whether in the form of actual paid time off or payment in lieu of paid time off…. [S]uch conditions define what has been earned.

The principles of the Lee case apply to vacation, paid time off, non-statutory sick leave, and a range of other benefits that are not mandated by law. Most vacation leave or paid time off policies that were written or revised by Nierenberg Employment Law have been carefully drafted to provide a benefit of time off only, and not payment in lieu of leave; those policies are consistent with this new case and should not need revision. However, all employers should nevertheless review their vacation, sick leave, and paid time off policies to be sure that they reflect the policies and values of the organization and that, if desired, they take advantage of the opportunities presented by this case.

A revised Federal minimum wage poster, reflecting the recently enacted minimum wage increases, is now available free of charge on the Department of Labor’s Web site. Every employer of employees subject to the Fair Labor Standard Act’s minimum wage provisions must post a notice explaining the Act in a conspicuous place in all of their establishments so that employees can read it without difficulty.

Effective July 24, 2007, the federal minimum wage for covered non-exempt employees will be $5.85 per hour. The minimum wage increases to $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009.

The tip credit provisions of the federal F.L.S.A. remain the same. An employer is still required to pay $2.13 an hour in direct wages if that amount plus the tips received equals at the least the Federal minimum wage, provided the employer has informed the employee of the tip credit being taken, the employee retains all tips except to the extent they participate in a valid tip pooling arrangement, and the employee customarily and regularly receives more than $30 a month in tips.

Many states also have minimum wage laws. Covered employers must comply with both federal and state requirements. In Minnesota, for example, there are several minimum wages, depending on the size of the organization:

Large employer — $6.15 an hour. “Large employer” is defined as any enterprise whose annual gross volume of sales made or business done is not less than $625,000.

Small employer — $5.25 an hour. “Small employer” is defined as any enterprise whose annual gross volume of sales made or business done is less than $625,000.

Training wage — $4.90 an hour. An employer may pay $4.90 an hour to new employees who are younger than age 20 during their first 90 consecutive days of employment. Permanent or current employees may not be displaced by new employees covered by the training wage.

Minnesota law does not provide a tip credit such as that found in the federal law.

Minnesota recognizes the following exemptions from state minimum wage requirents (among others): babysitters, taxicab drivers, volunteers of nonprofit organizations, elected government officials, people providing police or fire protection, and employees subject to the provisions of the U.S. Department of Transportation (drivers, drivers’ helpers, mechanics and loaders).

An increasing amount of an organization’s information is recorded electronically. Electronically stored data is as important as any other form of information to assessing, pursuing, or defending employment claims. There are, however, some unique legal issues that arise due to the specific nature of electronic data. In an effort to manage the production and use of such data, the federal rules governing civil proceedings have recently been modified. It is likely that state rules around the country will soon be modified to reflect the federal changes.

In order to implement the newly amended rules, it is critical that organizations understand their data management practices and review or institute certain controls. The process is complicated and time-consuming, so the time to begin preparing is now, before the inevitable need actually arises.

When it appears that a dispute may wind up before an arbitrator or judge, it will be important that all relevant data is preserved. It will become common for parties to send and receive letters similar to the following edited excerpt from the standard letter that I send:

Please take affirmative steps to preserve without alteration all records and tangible things of whatever type and form that are in the possession, custody, or control of you or an agent and that relate in any manner to any of the following: [the allegations, claims, and defenses of all parties; the statements made by witnesses; relevant conduct of parties or witnesses; previous allegations of a substantially similar nature regardless of who made them or when they were made]. The records and things to preserve include without limitation analog recordings of images, sounds, or other data; digital recordings of images, sounds, or other data; notes, reports, letters, drafts, e-mail, and memoranda; database components, including tables, indices, memos, and queries; electronically created or stored files; electronically created or stored backup files and electronically created or stored backup fragments; all logs related to all such documents; and all other material that is likely to be within the scope of [federal and state rules allowing liberal discovery of documents and things that may lead to relevant information, even if the initially discovered documents and things are not themselves relevant to the matter] regardless of whether the material is available from more easily accessible sources. The preserved material should be maintained in its native format as well as in all currently existing usable formats. PLEASE BE AWARE THAT, IN VIEW OF THIS HOLD LETTER, NO INFORMATION THAT IS SUBSEQUENTLY DELETED, LOST, OVERWRITTEN, OR OTHERWISE ALTERED AS A RESULT OF THE OPERATION OF YOUR INFORMATION SYSTEMS OR DATA RETENTION POLICIES WILL BE CONSIDERED TO HAVE BEEN COMPROMISED IN GOOD FAITH.

In order to manage the information necessary to promote your organization’s own interests while also complying with the type of “hold letter” quoted above, I recommend that you take the following steps:

• Assemble your information systems managers. Include outside consultants if you do not have the human resources in house. Managers of other functional divisions will also need to be part of the process.
• Determine what types of data your organization creates.
• Determine where all information resides, including old paper and old electronic data.
• Determine what types of backup operations are in place or contemplated, and where the backup data is located. Note whether the backup data are complete or fragmentary, i.e., incremental.
• Determine what your actual information retention policies are. Then determine what you want them to be. (Note that overwriting an existing file with new or adjusted information is generally equivalent to destroying the previous version.)
• Document and control:

– Where and how information is recorded;
– Where, how, and for how long information is stored;
– When, how, and what information is destroyed.

• Determine now what procedures will be necessary for the following:

– To produce data on any particular topic
– To discontinue normal overwrite and destruction procedures

• Maintain the ability to extract information from your data, which will mean either:

– Preserving hardware and software capable of reading various types of files in their native format, or
– Converting electronic data to a commonly accessible format other than its native format as part of the archiving process.

• Ensure that all affected persons are aware of the policies and procedures.

The question is not whether undertaking this process will be helpful, but how soon it will prove itself to be helpful. The need sooner or later for an organization to control its electronic data in order to comply with the new rules of litigation is inevitable. Taking these steps now, and ensuring that the policies and procedures are implemented throughout the organization, will make a substantial difference in the cost and effectiveness of pursuing and defending legal claims in the future.

UnumProvident has published an interesting paper, “Reducing Lost Time: The Correlation Between Family-Medical Leave and Short-Term Disability.” The paper describes the insurer’s 2005 study of “the various connections between lost time and the benefits that are paid to an individual during an absence.” The study included lost time data over a two year period from more than 144,000 employees and six companies.

From the paper:

The significant relationship between FMLA leaves and disability claims comes as no surprise to those who have administered FMLA, as they have intuitively observed the “co-morbid” nature of FMLA leaves running concurrent with extended medical lost time. An interesting discovery, however, was the close relationship between a family leave event in which the employee is in a caregiving role for a family member’s serious health condition and the employee’s subsequent filing of a short-term disability claim. This illustrates a relationship between FMLA and short-term disability that seemingly supports the impact of caregiver stress.

The paper goes on to describe various policy factors and workplace planning opportunities. In general, the study concludes that an integrated leave management approach–as compared to only a disability leave approach–results in lower corporate claim costs and more congruence between the benefits of the employer and the needs of the employees.

Quick Summary: Covered employers are not required to resurvey their workforces pursuant to the revised ethnic and racial categories until the reporting period ending September 30, 2008, one year past the original effective date. Other aspects of the revised EEO-1 procedure continue to take effect with the close of the 2007 reporting period.

First, the “Old” New Rules

Last year, the U.S. Equal Employment Opportunity Commission revised its EEO-1 survey procedure. The EEO-1 is, for many employers, a mandatory survey and reporting process that has been in use since 1966 to chart the patterns of women and minorities in the workforce. In November 2005, the E.E.O.C. issued final regulations that modified two aspects of the report, the ethnic and racial categories and the job categories. Along with the category changes, the EEO-1 report itself was revised.

Use of the revised report to survey and report the newly defined categories was initially scheduled to be required next year, with the reporting period that closes September 30, 2007. Now, the process is being phased in as described below.

Who Is Affected

The E.E.O.C.’s Standard Form 100, commonly called the EEO-1, must be filed by:

1. All private employers that:

1. Are subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees excluding state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations;

or

2. Are subject to Title VII, as amended, who have fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.

and also by

2. All federal contractors (private employers) that:

1. Are not exempt pursuant to 41 C.F.R. § 60-1.5, and
2. Have 50 or more employees, and
• Are prime contractors or first-tier subcontractors, and have a contract, subcontract, or purchase order amounting to $50,000 or more; or
• Serve as a depository of Government funds in any amount, or
• Constitute a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes.

Only those establishments located in the District of Columbia and the 50 states are required to submit EEO-1s. No reports should be filed for establishments in Puerto Rico, the Virgin Islands or other American Protectorates.

The Category Revisions:

The racial and ethnic categories were changed in the following ways:

• Adding a new category entitled “Two or more races”
• Dividing “Asian or Pacific Islander” into two separate categories: “Asian” and “Native Hawaiian or other Pacific Islander”
• Renaming “Black” to “Black or African American”
• Renaming “Hispanic” to “Hispanic or Latino”
• Endorsing self-identification of race and ethnic categories, as opposed to visual identification by employers.

The job categories were changed in the following ways:

• The category of “Officials and Managers” was divided into two levels based on responsibility and influence within the organization. The two new levels are:
1. Executive/Senior Level Officials and Managers (plan, direct and formulate policy, set strategy and provide overall direction; in larger organizations, within two reporting levels of CEO)
2. First/Mid-Level Officials and Managers (direct implementation or operations within specific parameters set by Executive/Senior Level Officials and Managers; oversee day-to-day operations)
• The revised EEO-1 also moves business and financial occupations from the Officials and Managers category to the Professionals category.

Now, the “New” New Rules

The new reporting form, i.e., the revised EEO-1 report, is still required for the reporting period ending on September 30, 2007.

The revised job categories are still required to be used for the reporting period ending on September 30, 2007.

If an organization will have knowledge of its workforce based on the revised ethnic and racial categories, then that information should be reported for the period ending on September 30, 2007.

However–and this is the “new” part–the E.E.O.C. will not require reporting employers to survey their workforces for information required by the revised ethnic and racial categories until the reporting period ending on September 30, 2008.

The E.E.O.C. encourages employers to obtain the revised ethnic and racial information by having employees “self-identify.” The process of self-identification and the development of a related database for EEO-1 purposes can begin as soon as practicable. It is not required to begin until the organization prepares to file in 2008.

More Information

Answers to frequently asked questions and instructions for filing the new reports can be found on the EEO-1 portal in the E.E.O.C. web site. Or contact us, and we’ll help.

The way that management initially handles a complaint of workplace misconduct can affect the likelihood of later litigation. Read Before the Investigation—The Importance of Intake from Sepler & Associates.

The U.S. Department of Labor posts a substantial amount of guidance for employers on its web site.

This is the current list of topics on which the Agency provides free compliance information:

• Drug-Free Workplace Advisor
• Family & Medical Leave Act (FMLA) Advisor
• Federal Contractor Compliance Advisor
• FirstStep Employment Law Advisor
• FLSA Child Labor Rules Advisor
• FLSA Coverage & Employment Status Advisor
• FLSA Hours Worked Advisor
• FLSA Overtime Security Advisor
• FLSA Section 14 (c) Advisor (Special Minimum Wage)
• Health Benefits Advisor
• MSHA Online Forms Advisor
• MSHA Training Plan Advisor
• MSHA Fire Suppression & Fire Protection Advisor
• OSHA Confined Spaces Advisor
• OSHA Fire Safety Advisor
• OSHA Hazard Awareness Advisor
• OSHA Lead in Construction Advisor
• OSHA Software Expert Advisors
• Poster Advisor
• Small Business Retirement Savings Advisor
• Uniformed Services Employment & Reemployment Rights Act (USERRA) Advisor
• Veterans’ Preference Advisor
• e-VETS Resource Advisor

To give an idea of the scope of information in the Department’s pages, here is the preliminary statement from the recently added Health Benefits Advisor for Employers: “This Health Benefits Advisor provides employers with an overview of certain federal laws that can affect health benefit coverage provided by group health plans. The requirements described in this Advisor generally apply to group health plans and group health insurance issuers….” And here is the preliminary statement from the FirstStep Employment Law Advisor: “The FirstStep Employment Law Advisor is designed to help employers determine which laws administered by the Department of Labor (DOL) apply to their business or organization and to provide links to information about how to comply with these laws.”

Additionally, the Department publishes an online Employment Law Guide, which describes laws, regulations, and technical services available to employers.

These services are limited to areas regulated by the Department of Labor under federal law. There is no information about areas regulated by other agencies, other federal laws, or any state laws. Additionally, the Agency information is oriented to the area of law, not to the workplace dilemma, so it might be difficult to find the right web page if one is unsure what specific laws are implicated. Even so, the web site is a valuable and convenient addition to the resources available to employers with compliance questions.

COBRA, the federal Consolidated Omnibus Budget Reconciliation Act, requires that administrators of covered health plans notify their terminated employees of a limited option to continue the group health benefits they had before termination. Substantial liability can be at risk if the employee asserts that he or she never received this “COBRA notice” and the plan administrator has inadequate records to satisfy its burden of proof. A recent case will help employers and administrators know what types of records should be created and retained.

The Eighth Circuit of the United States Court of Appeals has ruled that administrators, to carry their burden of proof that a COBRA notice was mailed to an employee, must have “evidence that the employer had a system for sending out the required notices [and] that the system was in fact followed with respect to the person in question.” Crotty v. Dakotacare Administrative Services (8th Cir. 2006) (No. 05-3798).

The Court held that COBRA administrators “must provide something that indicates that its mailing system was reliable and that the system was followed in the relevant instance.” Examples of the records that the administrator in that case did not have are “any evidence that [the contested] letter was printed out, placed in a properly addressed envelope, or sent through the mail.” Examples of records that, in other cases, were sufficient were a photocopy of the addressed envelope, a report stamped with the date of mailing, and an affidavit from the person who recalled mailing the notice.

Employers should be sure that they or their contracted COBRA administrators are creating and retaining the appropriate records. The records should reflect (a) a well-planned and well-executed system for tracking and notifying eligible former employees and also (b) contemporaneous records of the actual mailing to specifically identified recipients.

A pattern became apparent recently as I was listening to clients in a mediation session. Over the past several years, many of my clients—mostly organizations but occasionally individuals—have described their working environments as “like family.” That feeling, of course, predated the sudden turn of events that caused these “family” members to become estranged and to start litigating against each other.

However, as anyone deeply involved in workplace consulting or litigation knows, there are few sudden turns of events. More often, there is a long arc of linked events which lead to intractable conflict. A family workplace atmosphere has several problems, including making that road to conflict more difficult to perceive and difficult to remedy.

By a “family” workplace atmosphere, I do not mean a place where family members work; although places where family members work together have the same issues as discussed here, plus some others. And I do not mean a place where workers collaborate freely or where traditional hierarchies are absent; if done well, there can be great creativity and energy in such places.

By a “family” workplace atmosphere, I mean a place where topics that are not related to work become appropriate and customary to discuss during working hours; where supervisors and subordinates feel they can slide comfortably from working professionally with external vendors or customers, to talking with coworkers about the sweet and the sour of their personal lives, to palling around with supervisors and subordinates; where they are able to laugh a little loud or drink a little much or be sarcastic with the boss; a place where managers know more about the private lives of employees than they let on, and sometimes are a little extra accommodating because of it.

A family is ultimately defined by its members’ roles in it. In contrast, a family atmosphere in a workplace occurs despite its members’ roles in it. A workplace might seem like a family sometimes, but only during the good times. When there is a serious problem, a workplace does not function like a family, and the appearance—or community mythology—of a family atmosphere keeps a workplace from resolving problems on its own terms.

The Problem

Unlike most workplaces, families provide extensive opportunities to see their members in different lights as time goes by and circumstances change. Roles and expectations have more room to change—and there are more factors bearing on those changes—in families than in workplaces. And, whether one family member accepts another unconditionally or conditionally, there are not layers of laws enforcing behavior as there are in the workplace.

A workplace has fewer opportunities to remedy bad behavior, with graver downside consequences. In both workplaces and families, offenses add up until they reach a threshold. Both provide some opportunities over time to remedy the adversely felt consequences of bad behavior. And, if the individual who is offended by the bad behavior does not accept or forgive it, both the workplace and the family offer alternatives. Only the workplace, however, includes among the alternatives a range of legal actions that could target not only the employer but also the individuals engaging in the bad behavior.

Promoting or allowing a family atmosphere in the workplace invariably interferes with a clear evaluation of employees by their supervisors. In part that is because the focus of the supervisors becomes diffuse, distracted. From the perspective of the organization’s mission and effectiveness, that means that the subordinates’ role in the organization—good or bad—cannot be adequately assessed. It also means that the manager’s own performance as a supervisor is less productive.

From the perspective of the employees, it means that individual expectations of what a person should contribute and how the organization will respond are not clear. In the best of times, organizations risk having the expectations of an employee not aligned with the expectations of that employee’s manager, but the risk increases dramatically when other factors intervene, such as confusion over the supervisor’s focus, or concerns about what is private and what is appropriate to discuss at work.

The Fix

• Recognize this fundamental truth about employees:

Generally, employees do not care about whether a workplace is lax or strict as much as they care about whether a workplace is fair and predictable.

• Draw a line between your employees’ private lives and their work lives.

You can send the message that you are receptive to discussing the situation when an employee’s personal life affects work. You can offer an employee assistance plan, available from your benefits broker, that provides counseling for a range of issues, including those pertaining to family, finances, dependency, and violence. You can convert sick leave and vacation plans to paid time off plans, which is a win-win for employers and employees alike. Note, however, that discussions of privacy should be carefully tailored and reviewed to ensure that you are not engendering unintended employee expectations of privacy in organizational assets such as computer and communication systems, common areas, personal work spaces, etc.

• Reassess what your employees should be accomplishing.

Their job descriptions and performance appraisals should be linked. Not only the subordinates themselves but also their supervisors should be held accountable for how well the subordinates are performing. Supervisors should be held accountable for incidents of employee complaints, and they should be given tools and training to help them minimize the conditions for such complaints. It may or may not be appropriate in each particular case to factor in personal issues when responding to an employee’s performance problems, but, if it is appropriate, a plan should be developed which addresses the work issues and not the personal issues.

• Align the expectations of your employees with your new approach.

Announce that you want to be sure your employees feel secure in the privacy of their personal lives; that there are channels to raise those issues if they affect the workplace; that there are confidential resources to provide assistance with personal issues; but that, in the workplace, you are all there to work.

An employee has come to you with a complaint of possible illegal or inappropriate conduct. You have considered the important question, “If everything this employee alleged is true, what would we do?” and answered that the response would be significant enough that facts are needed (in other words, you can’t just do some training or send out a general warning to address it.) Now you must investigate.

Investigating a complaint should be done with an open mind, a commitment of a concentrated period of time and some good forethought. The goal of an investigation is to determine what happened. It will, hopefully, result in good information upon which the organization can base good decisions.

As simple and straightforward as an investigation might seem, the most common missteps are also the most damaging to the efficiency and effectiveness of investigations. This article will examine the most common missteps by investigators and provide some tips on good investigative practice.

Know what you are investigating

A good investigation starts with an excellent intake process. Someone has raised an issue, and someone has determined that were the issues substantially as reported it might be a violation of policy or law. The investigation, then, should determine whether the behavior alleged transpired, what the context of the behavior was, if relevant, and other information that would clarify the event or events in question. (One example of such additional, clarifying information is material that is necessary to assess the credibility of important but conflicting witnesses.) This is called the “scope” of your investigation, and you should maintain a clear line of sight to that “scope” throughout. This means:

• Avoid “fishing” for unrelated facts or issues.
• When new allegations are made, determine whether they are related to the scope of the investigation, and, if not, put them aside.
• Remember that you are investigating events, not people. Focus on what happened.

There is no such thing as too much planning

Inexperienced investigators tend to “dive in” to an investigation, following their nose from witness to witness. One good way to plan your investigation is to list those individuals that you think you want to speak with and make a note about what information you think that they will be able to provide. You might also create a list of “investigative questions.” These are questions you need answered in order to complete the investigation. For instance, if there is an allegation of theft from a drawer, some investigative questions might be “who had access to the drawer?” “Have there been similar thefts?” and “What was the time period during which the theft took place?” These questions about context, circumstance and facts will help you plan to get the information you need.

• Make a plan and revise it as necessary.
• Consider logistical or practical things that might interfere with your investigation.
• Make sure that the right people have been notified of a need to interview people.

Absolutely, without exception, apply “need to know” to your investigations

Investigations are truly bound by the simple adage that “loose lips sink ships.” The rule you must apply is that NO ONE who does not need information gets the information. That means standing up to managers who feel they are entitled to details of the allegations, or who wish “updates” during the course of the investigation. While managers or executives may feel that the investigative status is their business, discussing the investigation with them could compromise, or appear to compromise, your neutrality. If someone does not need the information to advance the investigation, they should not be provided any details. Most of the time, managers will need to know only allegations that call for an immediate response. Witnesses and respondents need to know enough to provide complete statements, but no more than that.

• Make sure that complainants know that the respondent is likely to know who they are, since they have the opportunity to respond to the specific allegations against them.
• Never provide information that does not immediately contribute to the investigation.
• Tell witnesses that, if they are asked about the subject of the interview, they should respond by stating, “I have been instructed not to discuss it.”

Take notes that help you remember what was said

Don’t rely on written statements without also noting the questions you asked and any instructions that you gave. It is perfectly okay to “clean up” your notes, as long as you maintain the original notes in your file. The notes are a tool for you, and should allow you to reconstruct what was said to you in the months following the interview.

• There is no one right way to take notes. The hallmark of a good note taker is that they can reconstruct what was said with a high degree of accuracy.
• Do not put subjective information in your notes. Use a separate document to make credibility observations.

Never skip the response

No matter how clearly it appears that the accused has behaved badly, never skip a responsive interview. Too many “smoking guns” have turned out to be mere illusions once all of the facts were in. There is simply no down side to letting someone give you their perspective on what happened, and you could avoid wrongful punitive responses by taking the time to offer due process.

Doing investigations is complex work. In highly complicated or politically-charged complaints, consider using outside investigators. The matrix accompanying this article can assist in the process of deciding whether to use outside resources.

Contributed by Fran Sepler