The SESCO Report – December 2022

Internal Investigations

It seems over the last 12 to 24 months that employee complaints of "whatever" have increased. Our client case volume has greatly increased regarding internal complaints requiring internal investigations conducted by company staff and/or SESCO.

Even if the employer feels as if the complaint is frivolous or not that serious, employers are legally obligated to investigate complaints of harassment, discrimination, retaliation, safety and ethics in a timely manner. In addition, in appropriate corrective action is required to be taken by the employer to ensure that illegal actions/behaviors cease immediately.

Responsiveness to a complaint and an investigation will not only yield necessary information and evidence, but it will also enhance the employer's credibility. You simply cannot ignore any type of complaint frankly whether it is of an illegal nature or not. The investigation process will help identify and resolve internal issues before they become wide spread. Since every complaint has a potential to become a lawsuit, employers must investigate every case in a manner in which it can be presented to a court of law.

Based on SESCO's long history of conducting successful investigations on behalf of employers as well as representing employers before the EEOC, we suggest the following:

Step 1: Ensure Confidentiality

The employer must protect the confidentiality of employee claims to the best of its ability. At the same time, the employer has to conduct a prompt and an effective investigation therefore it is reasonable to tell the complainant that you will hold the investigation in confidence to the best of your ability and that information will be shared internally only on a "need to know" basis.

Step 2: Provide Interim Protection

One of the first considerations may be the need to ensure the protection of the complainant. It may be necessary to separate the alleged victim from the accused or even, based on the complaint, suspend with or without pay the accused until the investigation is complete. Also, the accused should also be placed on notice that no matter what, there should never be any type of continued harassment or retaliation during or after the investigation.

Step 3: Select the Investigator

The investigator should possess the following:

• An ability to investigate objectively
• To have no stake in the outcome
• The skills to conduct such an investigation
• Strong interpersonal skills as well as credibility with the complainant
• Have attention to detail
• Be in a position to maintain confidentiality

Due to the significant liability as well as potential internal rumor mill and explosive nature of investigations, employers generally use the resources of a firm like SESCO. There are distinct advantages to doing such.

Step 4: Create a Plan for the Investigation

This plan should include an outline of the issue, the development of a witness list, sources for information and evidence, interview questions and a process for retaining documentation such as social media, interview notes, emails, texts, etc.

Step 5: Conduct Interviews

The first interview should be with the complainant. Be very specific in asking, in essence, "what" happened, who witnessed it or heard it, dates, and other facts. Be careful in the conversation to not infer you do not believe the individual. Many times, we will use recording devices. Regardless, reduce the interview to writing and have the complainant sign and date it. Many times, we will also have the complainant reduce the complaint to writing prior to the first interview so that questions can be asked from there.

Next, go to the accused, explain the concern and get his or her response. Include the recording device and/or the documentation as in the first interview. Remind the accused or the zero-retaliation expectation.

Interview witnesses that were identified by the complainant or the alleged abuser and maintain the same documentation.

Step 6:

In addition to the investigative notes, develop a detailed, written summary of the investigation's results. Who was interviewed, dates and times, and perspective on the investigation. This will include recommended employer actions.

Step 7: Conclusion

Once the investigation has been complete and the actions have been confirmed, let the complainant know that the investigation has been complete and that you are taking appropriate action. Please know that the complainant does not need to know what action is being taken. Also know that the complainant many times will expect a termination or other results such as a severance payment or other potentially inappropriate request. At this stage, the employer is only required to take what they feel like is appropriate action based on a commonsense standard and to do so timely. As necessary, circle back with the accused and as appropriate take action which may include an apology, a verbal warning, a written warning, or termination, especially if this is not the first complaint or if there are other behaviors coupled with this complaint that deserve such disciplinary action.

In Summary

The goal of this whole process is to ensure that if a court, jury or government agency were to investigate the complaint on behalf of the complainant, they would conclude that the employer took the situation seriously, responded immediately and appropriately, and had documented good-faith basis for any action (or no actions) taken during or as the result of the investigation. Regardless if SESCO is involved in the investigation or not, it is always good for clients to be counseled by SESCO through this process given the legality and potential cost of conducting a poor investigation internally.

Pros and Cons of Providing Employment Reference Checks

Should you, or shouldn't you? Whether employers should provide references for former employees is debated among HR professionals. Prospective employers are wise to conduct reference checks of applicants. Unfortunately, when asked to supply a reference for a former employee, a company is often hesitant to provide any information beyond the individual's previous position and length of employment.

Companies benefit from providing references. Supplying references offers several benefits to the former employer, including:

• Rewarding good employees, which in today's word-of-mouth work environment will help increase the morale and productivity of remaining employees;
• Creating business networks in which people freely exchange accurate information concerning applicants;
• Assisting a company's outplacement efforts if employees have been let go due to downsizing or mergers, resulting in higher morale of remaining employees and lowered unemployment rates as displaced employees become reemployed.

Additional reasons why employers are wise to check an applicant’s references:

• to verify applicants' truthfulness;
• to check their past work performance and determine overall competence to do the job;
• to reduce potential legal liability; and to prevent problems often caused by poor hiring decisions, such as absenteeism, high turnover, discipline problems, and theft.

Barriers to successful reference checking. Why don't employers provide references? The biggest fear of individuals asked to provide references is that the information they provide will come back to haunt them in the form of a defamation or invasion of privacy lawsuit.

What is defamation? The traditional defamation claim occurs when an employer discloses false statements to third parties that ultimately result in damage to an employee's reputation.

A form of defamation gaining recognition by some courts, "compelled self-publication" occurs when an employer gives an employee a false and fabricated reason for the termination, and as a result, the employee is compelled to communicate that false reason to a prospective employer.

What is invasion of privacy? An employer is found to have unlawfully invaded an employee's privacy when it publicly discloses private facts relating to a former employee that a reasonable person would find objectionable. Private facts may include sexual relationships, sexual orientation and medical conditions.

Unlike defamation, even if the publicized facts are true, an employer may be liable for invasion of privacy if the information it discloses should have been kept secret. However, facts that are public record (e.g., criminal records), or facts the employee disclosed to several people will not be protected.

What are an employer's defenses? Employers will not be liable for defamation or invasion of privacy if they are able to raise one of the available defenses. In addition, several states have enacted laws specifically protecting employers who provide references. In general, employer defenses available include:

Truth. An employer who makes a true statement cannot be held liable for defamation. In order to ensure that it can successfully bring this defense, an employer should have persuasive, factual information supporting the statement it claims to be truthful. Also, while truth protects an employer in a defamation claim, it is not necessarily a defense to an invasion of privacy claim.

"Qualified privilege." Most courts hold that an employer has a qualified privilege to respond to a legitimate inquiry (e.g., from a prospective employer), with truthful, job-related information, provided it lacks malice (e.g., does not know the statement to be false, or that it may be false).

Employee consent. An employer will be protected from liability for statements it makes concerning a former employee's performance if the employee previously consented to the discussion. It is recommended that management ask a separating employee to sign a form authorizing management to discuss his or her performance with prospective employers. If the employee refuses, the company should inform a prospective employer that it is unable to provide a reference because the former employee has not authorized it to do so.

State reference-checking laws. Several states have enacted laws that protect employers who provide employment references. While these laws are not uniform, they generally provide civil immunity to an employer who provides good faith, truthful disclosures about former employees to prospective employees.

Legal consequences. To complicate the issue further, employers may also be found liable for failing to provide a reference under circumstances in which the employer:

• knew of a former employee's dangerous propensities, and
• failed to truthfully and fully disclose this information to a prospective employer.

Cases that have addressed this issue have not imposed a blanket affirmative duty on employers to disclose an employee's bad traits. Rather, the employers were held potentially liable for having given solely favorable references for employees known to have dangerous propensities. Therefore, it is suggested that once a company decides to provide a reference for an employee known to have a dangerous propensity-it must tell the whole story.

SESCO's Immigration Law Compliance Checklist

The more questions you answer yes, the more you have reduced the chances that your organization will violate the federal immigration laws.

Policy

- Do you have a policy to comply with the Immigration Reform and Control Act of 1986?

- Does your policy require the employee to complete the employee’s part of the I-9 form within three (3) days after hire?

- Does your policy require timely completion of the I-9 form by the employer?

- Do you accept verification of identity and employment eligibility from state employment agencies?

- Does your policy address what actions are required if an employee’s right to work in this country expires while the employee is:

• On approved leave?
• On strike?
• Laid off?

- Does your policy address what actions are required if an employee is:

• Promoted?
• Demoted?
• Transferred?

- Does your policy state that you will not specify which documents are to be shown to you?

- Does your policy state that once you are provided with documents sufficient to establish identity and eligibility to work, you do not require additional ones?

- Does your policy state that you will not discharge or refuse to hire a person because of the individual’s national origin or citizenship status?

- Do you require all employees hired after November 7, 1986 to complete an I-9 form?

- Do you offer employment on the condition of providing proof of work eligibility and identification?

- Do you require all I-9 forms to be completed in ink?

- Do you instruct the individuals who are signing I-9 forms that they are doing so under the penalties of perjury?

- Do you explain to supervisors their personal liability if they violate the law?

- Do you have one individual or department responsible for answering inquiries concerning your policy on immigration law?

Procedures

- Do you provide applicants with a complete list of all documents that are acceptable under the law?

- Have you made a decision as to whether you will copy documents presented to you?

- Do you consistently follow your policy regarding copying?

- Is one person or one department responsible for I-9s?

Special Thanks to New SESCO Clients

United Southeast Federal Credit Union
Bristol, TN

Community Connections, Inc.
Princeton, WV

Goodman Truck & Tractor Co., Inc.
Amelia, VA

Academy of Professional Funeral Service Practice
Buchanan, GA

United Colorado Enterprises
Commerce City, CO

Featured SESCO Client

Federal Pacific

Federal is the division of Electro-Mechanical, privately held, American owned company founded in 1958. The company is headquartered in Bristol, Virginia and manufactures a wide variety of products used in the generation, transmission, distribution and control of electricity. These products, along with various electrical equipment repair and maintenance services are used by a diverse mix of energy (coal, oil and gas) electric utility and industrial customers worldwide.

Electro-Mechanical's divisions have earned a customer-oriented reputation by keeping its focus on providing the best of value to their customers through quality products and services.

With five (5) manufacturing companies and two (2) repair and service companies, the electrical group has nearly 1 million square feet of modern manufacturing facilities located in Virginia, Tennessee and Mexico.

The company employs over 500 employees.

Recently, Electro-Mechanical, LLC acquired Mirus International, Inc., a Canadian-based manufacturer of specialized power quality improvement products.

Christmas Message to SESCO's Valued Clients

We sincerely appreciate both our new and longstanding clients as without you and your loyalty we would not have grown and been able to serve those in need for 77 years. Besides our commitment to provide timely and professional services, we respect all those who are in business as the labor and employment law challenges are great. But most importantly, we value our partnership and we certainly wish you a prosperous Christmas and 2023!

I hope that you, your employees and their families enjoy this holiday season with delight, enchantment and pleasant surprises.

Thank you for being you and for giving us the opportunity. Always best wishes and peace and prosperity.

Most sincerely,

William E. Ford

President & CEO