Over the years, the topic of workplace investigations has gained increasing importance in the HR and employment law world. Now, with investigations routinely making headlines, they have become a part of our popular culture as well. Most recently, the investigation conducted and conclusions reached on issues related to “Deflategate” have triggered national attention and controversy. Tom Brady’s appeal of his four-game suspension was upheld last week. In addition to the intrigue surrounding one of the country’s most well-known athletes, the issues raised in this story also provide great learning lessons for those of us who routinely conduct investigations.
1. Unconscious (or Perhaps Conscious) Bias
The public outcry over the results of the “Deflategate” investigation tends to focus on one’s deep-seated love of or hatred towards Tom Brady (or the New England Patriots). As unbiased, independent investigators, we cannot be swayed by personal feelings unrelated to the investigation. If you are tasked with performing a workplace investigation and you know that you have a bias against (or in favor or) any party involved, you should recuse yourself. Remember that during an investigation (and as you implement resulting corrective measures, if necessary), the perception of fairness is just as important as actual fairness.
2. Standard of Proof
Is it sufficient—for purposes of a standard of proof—that the investigator found that it was only “more probable than not” that Patriots personnel deflated footballs and that Brady had at least a general understanding that this was taking place? Yes. The first few pages of the report show that this standard of proof is taken straight from National Football League (NFL) policies. “More probable than not” also happens to be the accepted standard of proof in workplace investigations. While this standard of proof may leave fans dissatisfied, it is the standard mandated by the relevant policies here.
3. Use of Experts
The Deflategate investigation team not only relied on witness testimony, document review, site visits and video footage, it also utilized experts to analyze whether environmental factors might have led to the deflation of the footballs in question. Each investigation is unique. While all investigators should have a standard protocol (including checklists and forms that track the path of the investigation, for example), each new case necessitates the use of judgment. Who should be interviewed? In what order? Where should the interviews of the witnesses be conducted? What documents need to be reviewed? Who else needs to be involved (in a traditional workplace investigation, the IT, Security, Legal, and HR departments will be involved as will others who have access to pertinent information). The path each investigator follows should depend on the scope of the investigation. If an arcane issue (like the Deflategate investigation’s “Ideal Gas Law”) arises, a qualified expert may be necessary.
4. Determination of Credibility and Motive
Most investigations will hinge to a large or small degree on whether the investigator found a witness to be credible. Relevant to this determination may be, for example, whether there are reasons for a witness to lie or exaggerate; whether there are reasons for a witness to hide evidence; whether one witness is more credible than another. Regardless of the public’s assessment of Brady’s credibility, both the investigator and the NFL Commissioner, Roger Goodell, put substantial weight on how Brady handled his cell phone, finding that his actions negatively impacted his credibility. Commissioner Goodell’s decision states, “Mr. Brady willfully obstructed the investigation by, among other things, affirmatively arranging for destruction of his cellphone knowing that it contained potentially relevant information that had been requested by investigators.” As independent investigators, our job is to take the evidence collected and determine whether the allegations are supported by credible evidence; making credibility determinations will therefore be a key part of that job.
5. Corrective Measures
A substantial source of the outcry related to this issue is a public perception that the corrective/disciplinary measure imposed on Brady and the Patriots is too harsh, particularly in comparison to the discipline that has been imposed on other players for various incidents (most notably, the discipline imposed on other NFL players related to allegations of domestic violence). A key role of a workplace investigator is to assist in the design and implementation of appropriate remedial measures if the investigation uncovers wrongful behavior. Generally, the remedial or disciplinary measure taken should be commensurate to the wrongdoing and just harsh enough to discourage future inappropriate behavior. Additionally, employers should look to past practices and understand that the remedial measure implemented will likely create a precedent (perhaps even serving as a benchmark against which subsequent disciplinary measures are judged).
Conclusion
This story has created incredible interest for football fans and non-fans alike, primarily because it involves a high-profile athlete, playing the country’s most popular professional sport, on a team that is both beloved and hated by many. It has created heated debate in the public sphere, but for those of us who conduct workplace investigations, it also provides a fascinating glimpse into the DOs and DON’Ts of investigations.
There are many additional nuances to a well-done workplace investigation. For an in-depth examination of the investigation process, join us at Ogletree Deakins’ 2015 Corporate Labor and Employment Counsel Exclusive seminar where Patti C. Perez (shareholder, San Diego) will be joined by Michael Clarkson (shareholder, Boston) for a session entitled, “The Twists and Turns of ‘Routine’ Workplace Investigations: Solutions to Common Challenges.” Our speakers will offer practical solutions for some common yet challenging investigation issues such as: What happens when one investigation begets more investigations? How does an opposing lawyer’s or government agency’s involvement impact a company’s investigation? How are investigations perceived by juries? This year’s Corporate Labor and Employment Counsel Exclusive seminar will take place on November 12-14, 2015, at the Arizona Biltmore in Phoenix, Arizona.
Patti C. Perez is a shareholder in the San Diego office of Ogletree Deakins.
Michael Clarkson is the managing shareholder of the Boston office of Ogletree Deakins and chair of the firm’s Drug Testing Practice Group.
