Things investigators must do to shield their work from earned criticism.

1. ABA CONFERENCE Bulletproofing your Employment Investigations Fran Sepler, President Sepler & Associates Minneapolis, MN

2. 2 Strategies In the course of conducting investigations, two strategies are essential: Ensuring a sound rationale for methods and decisions throughout the investigation Attention to areas of common vulnerability – the most “attackable” aspects of investigations.

3. 3 The Key Qualities of Defensible Investigations Neutral Rigorous Independent Bound by a clear rationale Consistent within and among investigations

4. 4 Where the Bullets Get Aimed Scope Creep Getting pulled “out of neutral” by a tempting fact Getting overloaded by new allegations Losing sight of initial intentions

5. 5 When New Issues Arise, Ask: Is this issue merely a new aspect of the original claim? Is the outcome of looking into new information likely to have a significant impact on the investigation as a whole? Are the parties I would need to interview largely the same as those I already have spoken with or intend to speak with? Do the new allegations represent serious challenges to the credibility of anyone whose statement I am relying on? Is the content germane to the investigation in any significant way? Would adding the new allegation to the investigation significantly delay the outcome?

6. 6 Debatable but Defensible Methodological Issues Tape recording or not tape recording Interviewing two on one vs. one on one Reviewing files or documents prior to interviewing a witness Scope of briefing prior to commencing investigation Retaining or destroying drafts, notes, other documents

7. 7 Preventing Claims of Manipulation or a Lack of Neutrality Use a checklist or other tangible method of providing notices Provide opportunity for open-ended narrative at every interview Limit contact with management during the course of the investigation Do not provide “updates” Maintain a strict “need to know” stance Clarify the independence of decision making from the start.

8. 8 Documentation Notes should be even handed and neutral Subjective impressions or credibility notations, if they MUST be made in writing, should be written outside of notes.

9. 9 Due Process Issues Ensure the respondent has the opportunity to fully respond to allegations and to identify witnesses. Avoid only closed-ended questions.

10. 10 Conflicts Be mindful of dual relationship issues Be aware of prior adverse contacts

11. 11 In Summary “This is how I do things, and here is why….” The best bulletproofing is consistency and rationale.

12. FRAN SEPLER SEPLER & ASSOCIATES FRANSEPLER@SEPLER.COM

13. ABA CONFERENCE Practical Approaches to Employee Investigations: The Defense Perspective Carlos R. Perez, Esq. Reich, Adell & Cvitan CARLOSP@rac-law.com

14. ABA CONFERENCE INVESTIGATIONS GONE WILD: POTENTIAL CLAIMS MAUREEN S. BINETTI, ESQ. Wilentz, Goldman & Spitzer, P.A.

15. 15 EMPLOYMENT INVESTIGATIONS AS OFFENSIVE WEAPONS Misuse of Investigation Mishandling Investigation Common Mistakes Practical Suggestions

16. 16 POTENTIAL CLAIMS Retaliation Cooperating with Investigation Asserting Complaints

17. 17 Intentional Infliction of Emotional Distress Bad Faith Investigation/Wrongful Discharge Invasion of Privacy Negligent Misrepresentation Free Speech (Public Employees) Constitutional Claims RICO Liability Of Employer Personal Liability of Investigator

18. MAUREEN S. BINETTI, ESQ. Wilentz, Goldman & Spitzer, P.A. 90 Woodbridge Center Drive Woodbridge, New Jersey 07095 (732) 855-6034 (732) 726-6698 – Fax mbinetti@wilentz.com