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2013 Annual Conference Programs
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Thursday, October 24, 2013

1:00 pm ♦ Pre-Conference Program: The Investigators' Toolbox: Technology as a Tool for a Thorough Investigation ♦ Deborah MadduxJustin Kochan & Jeff Stanton (2.0 CA MCLE & 3.25 HRCI Approved)

This program will introduce participants to the world of computer forensics, and walk them through basic computer forensics techniques that can be incorporated into their workplace investigations.  Topics to be covered include

  • The increasing standard of care for electronic evidence
  • General best practices for collecting and preserving digital data
  • Preserving and accessing electronic data, the dangers of spoliation, and documenting a chain of custody
  • Tips and techniques for managing investigations involving email, cell phones, and instant messaging
  • The possibilities and limitations of a computer forensics professional, including recovering lost or deleted files and making forensically sound copies of data

The format of this program will consist of the presentation of content integrated with cutting-edge hands-on simulated computer forensics exercises, involving the participants working in groups of four with laptop computers. This program is designed for participants to attend either in conjunction with the conference (which will include several sessions which will build upon the content covered in this program) or as a stand-alone program. This program will build upon the pre-conference program presented at AWI's 2012 annual conference, so it is suitable for participants who attended that program.

Friday, October 25, 2013

9:00 am ♦ Year in Review: Legal Update of California and Federal Law ♦ Debra L. Fischer & Elizabeth W. Gramigna (1.5 CA MCLE & HRCI Approved)

A discussion of legal developments over the past year, including new developments in federal and California anti-discrimination laws  affecting investigators and investigations. In addition to the basics, hear about current investigation trends established as a result of these developments. We will explore how the NLRB, the EEOC, state agencies, and the courts have all impacted the manner in which investigators conduct their investigations.

10:45 am ♦ An Insider's Peek at Corporate Investigations ♦ Judy L. MimsCynthia Remmers & Kitt Shute (1.25 CA MCLE  & HRCI Approved)

Learn how some companies conduct workplace investigations – how their programs are organized, how they train their investigators, when they retain outside investigators (including attorneys and private investigators), and how they address ethical issues, including neutrality and legal representation. 

12:00 pm ♦ Luncheon & Keynote Speaker ♦ Kevin McGuire ♦ Conducting ADA Compliant Investigations(1.0 HRCI Approved)

The most carefully crafted interview session is incomplete if it does not address the unique needs of people with disabilities.  Does your interview process consider different types of disabilities and their particular issues?  Does your interview consider communication dynamics for people who are deaf or hard of hearing?  Does it consider physical issues related to people with mobility disabilities?  Does it address how to properly interact with people who have emotional/cognitive/intellectual disabilities?  Are you prepared to offer people who are blind/low vision materials in alternate formats?  This interactive session will cover any/all applicable law, and what interviewers legally need to ensure so interviewees with disabilities are both treated with dignity and respect as well as how to otherwise ensure proper protocol and compliance.  The session will be interactive, via videos, and with time for extensive Q&A.

1:45 pm ♦ Investigating Compliance Issues  D. Jan Duffy & Cynthia Pevehouse (1.25 CA MCLE & HRCI Approved)

Today, in addition to standards and policies, many organizations have developed formal compliance programs to assist them in navigating a wide array of federal and state laws.  Policies relating to employment laws are but one component of an organization’s effective compliance program.  How does an investigator handle allegations of misconduct that go beyond sexual harassment/discrimination?  What other company policies may apply?  This presentation will cover the similarities and distinctions, as well as additional implications and complexities to be aware of, such as operational protocols, industry specific considerations, and external factors (reporting or disclosure requirements, litigation management, or media concerns). 

1:45 pm ♦ Mind Your Own Business: Using Social Media as an Investigative Tool ♦ Sabrina Thomas & Nikki Hall (1.25 CA MCLE & HRCI Approved)

Employers' use of social media as an investigative tool is becoming increasingly common.  Employers are turning to social media for fact finding and evidence collection to verify an employee’s whereabouts, investigate inappropriate computer usage, sick leave and excessive absenteeism, theft, fraudulent workers’ compensation claims, and off duty conduct.  But the adrenaline rush an employer may get from obtaining information from social media may cause them to run afoul of laws designed to protect employees’ rights, including protected speech under the NLRA and First Amendment, as well as privacy rights. This session will address the extent to which investigators and employers can use social media as a tool in personnel investigations without running afoul of the law.

3:15 pm ♦ The High Cost of Getting Even: Understanding and Investigating Retaliation Claims ♦ Sindy Warren & Allison West (1.25 CA MCLE & HRCI Approved)

Retaliation complaints are some of the riskiest, and most common, in the workplace.  As investigators, our role is not to reach legal conclusions – yet, we are often asked to determine whether a complainant has suffered some type of retaliation.  This program will focus on what retaliation is – and isn’t – under some of the key employment laws and provide a framework on how to conduct an analysis of the facts and reach a reasoned conclusion.  Key Learning Points include understanding what retaliation is and is not under state and federal law; learning how to analyze the evidence without reaching a legal conclusion; and focusing on investigators’ responsibilities to protect witnesses from retaliation.

3:15 pm ♦ Framing Your Findings: What the Client Needs to Know ♦ Samantha BlakeMarilou Mirkovich & Jody Shipper (1.25 CA MCLE & HRCI Approved)

The panelists will discuss ways to frame factual findings pertaining to claims of workplace discrimination in a way that will allow the client (including its HR department and its legal team) to ensure that employee complaints are thoroughly analyzed consistent with the law and policy, and to assess potential liability and exposure.  The presentation will include a basic discussion of the legal elements of unlawful harassment, discrimination, and retaliation, which will provide a framework to which factual findings can be tailored.

Saturday, October 26, 2013

8:00 am ♦ Avoiding Investigation Landmines ♦ Mark M. Mallery & Sarah J. Murphy (1.0 CA MCLE & HRCI Approved)

Presenters will focus on effectively tackling difficult investigation scenarios, such as high level managers whose judgment may be questionable, interviewing uncooperative witnesses, handling witnesses who insist on recording communications, interviewing employees on medical leave, and challenges encountered when presenting investigators as witnesses at trial.

9:00 am ♦ Capturing the Witness Statement: From the Investigation to Brain Science--What's the Best Approach? ♦ Elizabeth Rita & Keith Rohman (1.0 CA MCLE & HRCI Approved)

Few topics can ignite a more spirited debate among workplace investigators than how we document the witness's statement.  Do you always tape record or never?  Do you draft a witness affidavit, and if not, why not?  Do you read your notes back to the witness, or just draft a report?  There are strong, even impassioned views on which is the right approach.  This presentation will examine the different approaches and break down each method with the pros and cons of each.  Attendees will hear the results from a survey of AWI's own Board members' note taking practices, as well as fascinating insights from cutting edge neuroscientific research on hearing, listening, multi-tasking, attention and note-taking.  The training will include discussion about the new technology that is making audio recording more accurate, discrete and efficient.  The presentation will conclude with a discussion of the critical issues that every investigator should consider in deciding which approach is right for them (or right for a particular case).

10:15 am ♦ Investigator as Deponent: How to Nail Your Deposition Testimony ♦ Amy Oppenheimer & Sue Ann Van Dermyden (1.25 CA MCLE & HRCI Approved)

Whaaat?! A deposition notice and document request for my entire file? On a matter I investigated two years ago? Yep. When it comes, be ready. Attend this one-of-a-kind seminar by two seasoned attorney investigators. They will discuss procedural, substantive and practical aspects of this nerve-wracking yet increasing reality.  The fun will include discussion about document production, representation at the deposition, handling questions about the adequacy of your work, and a replay of real life scenarios.