Category Archives: Investigations

Quirky Question #285: Potholes on the Ethical “High Road”

Question:  We learned that some of our employees may have been engaging in unethical, and perhaps even illegal, behavior.  We don’t tolerate this, so we hired a law firm to conduct an investigation, and based on the results of that investigation, we terminated the employees.  The terminated employees were high-profile employees, and we told some people why they were fired.  Also, when we fired the employees, we briefly referenced the investigation, but didn’t provide them with any substantive information about it.  Do you see any problems with that?

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“Cat’s Paw Theory Endorsed by U.S. Supreme Court” — Staub v. Proctor Hospital

On March 1, 2011, the Supreme Court decided the case of Staub v. Proctor Hospital, No. 09-400.  The decision was unanimous (8-0), with Justice Scalia writing the Court’s opinion, Justice Alito writing a concurrence in which Justice Thomas joined, and Justice Kagan taking no part in the case.  The Court overturned the Seventh Circuit, holding that a reasonable jury could have determined that Proctor Hospital violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), on a “cat’s paw” theory, when Proctor’s human resources director terminated Vincent Staub based in part on recommendations of Staub’s supervisors who allegedly were motivated by hostility towards Staub’s responsibilities as a member of the Army Reserves.

(For those unfamiliar with the “cat’s paw” concept, Justice Scalia explained: “The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Posner in 1990. See Shager v. Upjohn Co., 913 F. 2d 398, 405 (CA7).  In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.  A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward.”)

Background Facts

Staub, a member of the United States Army Reserve, worked at Proctor Hospital as an angiography technician.  Staub’s immediate supervisor, Janice Mulalley, and her supervisor, Michael Korenchuk, disliked Staub’s Reserve obligations, which included training one weekend per month plus two to three weeks each year, because the obligations made scheduling difficult.  Both Mulally and Korenchuk made disparaging remarks regarding Staub’s Reserve service, and Mulally indicated to a co-worker that she wanted to “get rid of” Staub. Korenchuk was aware that Mulally was “out to get” Staub. Answer→

Witnesses at Investigative Interviews, Quirky Question # 84

Quirky Question # 84:

We periodically have to investigate alleged wrongful conduct by our employees.  Some of these employees want to bring another person with them to the investigative interview.  Over the years, I’ve received conflicting reports about whether we have to allow this practice, or not.  One employee who was insisting on having someone with her during the investigation told me that even though she is not a union employee, she has “Weingarten” rights.  What’s that?  Do I have to allow her to bring someone with her to the interview? Answer→

Quirky Question # 42, Investigation Inquiries

Quirky Question # 42:

This week I’ve decided to take a slightly different approach to my Quirky Question Blog.  I recently presented a Continuing Legal Education seminar on Workplace Investigations, at the end of which I received a number of thoughtful questions from the audience.  Although these questions are not particularly quirky, I thought they were worth addressing.  The following questions will be addressed next Monday.

1)         Is there a time frame you recommend for employers to commence an investigation into workplace misconduct?  Is there a time period by which the investigation should be completed?

2)         If a lawsuit is filed on the morning the investigation is commenced, must that fact be disclosed to the interviewees?  Would this assessment change if the interviewee is named as a defendant?

3)         How do you prevent an interviewee from sharing with other employees the discussion that takes place in an investigative interview?  Would you recommend disciplining a witness who does not maintain the confidentiality of the interview discussion?  Should that person be terminated?

4)         What if an employee surreptitiously records an interview session?  What can be done to retrieve the tape recording?  What consequences can be imposed for this conduct?  If the tape is recovered, can it be destroyed?

5)         How can you evaluate witness credibility if the interviews are being conducted telephonically?

6)         What right does the employee accused of wrongful conduct have to obtain the investigative report?  How about the witnesses who are interviewed?  How about the person making the accusations?

Tune in next week for a discussion of these inquiries. Answer→

Unethical Conduct By Employee, Quirky Question # 41

Quirky Question # 41:

I am the Director of Human Resources for a manufacturing firm.  I was recently contacted by the manager of a motel located near our office.  The manager informed me that one of our employees (an outside salesperson) has been stopping at the motel in the morning, picking up one of the “free” newspapers, eating the “free” breakfast, and then leaving.  The second time this happened, the manager confronted him, told him that this was stealing, and asked how he would feel if she showed up at his place of business and started taking things.  According to the motel manager, our salesperson reportedly responded by saying that if she wanted to do that, “they could talk.”  The motel manager eventually followed our employee to our office and alerted us to the situation.  What should we do? Answer→

Employee Cooperation in Investigations, Quirky Question # 9

Quirky Question # 9:

Two of our employees are involved in a romantic relationship.  We recently learned that our male employee assaulted our female employee at her apartment.  He was charged with domestic assault based on her report and convicted.

We then tried to elicit information from our female employee about whether she felt her paramour posed a risk of violence to her or any of her co-workers.  She refused to answer our questions, claiming they invaded her privacy.  We do have a policy that requires cooperation with our investigations.  What options do we have?  Can we fire her for refusing to assist in our investigation? Answer→