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2014 Annual Conference Programs
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Thursday, November 13, 2014

8:30 am ♦ Annual Meeting of Directors

11:00 am ♦ Registration Opens

1:00 pm ♦ Pre-Conference Program: Achieving Excellence in Investigative Report Writing ♦ Sue Ann Van Dermyden & Keith Rohman (3.25 HRCI & CA MCLE Approved)

This session will be laser-focused on the Workplace Investigative Report. The purpose of an impartial investigation is to give the decision-maker an effective tool to make reasoned—and sometimes high risk—employment decisions. To meet this purpose, the Investigative Report must clearly outline the scope of the investigation; accurately define the investigative questions; and, provide an unbiased analysis of the conflicting evidence. That, coupled with a solid understanding of the applicable policies, gives the decision-maker the tool it needs to make a defensible decision as to the appropriate response and remedial action, if any. This fast-paced session will address these critically important topics in a concise, effective and entertaining manner.

2:45 pm ♦ Break

4:30 pm ♦ Pre-Conference Program Concludes

6:00 pm ♦ Optional Networking Dinner at Jack's Restaurant, 60 Crescent Drive, Pleasant Hill, CA 94523. Round trip bus transportation from the hotel is included in the $50 price of the dinner.

Friday, November 14, 2014

7:00 am ♦ Registration & Continental Breakfast

8:30 am ♦ Welcome & Opening Remarks ♦ Julie Moore & Michael Robbins

9:00 am ♦ Interviewing: The First 90 Seconds and Beyond ♦ Amy Oppenheimer & Keith Rohman (1.25 HRCI & CA MCLE  Approved)

First impressions matter; the initial 90 seconds you spend with a complainant, a witness or subject can determine if you will have a truthful, informative interview which brings out all that person knows, or a sluggish, truncated experience filled with resistance and concealment. And because witness interviews are a centerpiece of workplace investigations, using these early moments effectively can be a turning point for your entire effort. In this interactive session, two seasoned workplace investigators will demonstrate how to (and how not to) establish rapport and a personal connection while maintaining an appropriate professional demeanor and getting the interview going quickly. Using both role plays and lecture, they will discuss building from those early minutes into the full interview, to get the most—and the most accurate—information during the interview itself.

10:15 am ♦ Break

10:30 am ♦ Keynote Speaker ♦ Michael Floyd ♦ Spy the Lie: A Former CIA Officer Teaches You How to Detect Deception (1.5 HRCI & CA MCLE Approved)

Spy the Lie is a presentation drawn from the New York Times bestselling book by the same name that is based on a detection of deception methodology developed at CIA. This systematic approach is now used throughout the intelligence community. The presentation provides participants with key techniques on how to better detect deception and not be fooled by human behavior designed to mislead them. These techniques have proven extremely effective in the commercial world by helping professionals identify areas of concern that people do not wish to disclose. The presentation is both interactive and entertaining, while at the same time enabling participants to significantly enhance their detection of deception skills in a remarkably short period of time. A paperback copy of Spy the Lie: Former CIA Officers Teach You How to Detect Deception will be included in the conference program materials for each participant. Copies of the speaker's forthcoming book, Get the Truth: Former CIA Officers Teach You How to Persuade Anyone to Tell All, will be available to purchase at the conference.

12:00 Noon ♦ Lunch

1:00 pm ♦ Year in Review: Legal Update of State & Federal Law ♦ Mark Flynn (.5 HRCI & CA MCLE Approved)

A discussion of legal developments over the past year, including new developments in federal and state 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.

1:30 pm ♦ Behavioral Analysis: A Tool for Effectively Approaching Witnesses and Clients Jill Rosenthal (1.0 HRCI & CA MCLE Approved)

Learn how to quickly identify the “behavioral style” of a witness or client and how best to approach him/her and to gain the requisite trust and cooperation. The DISC system of behavior analysis – originally developed by the inventor of the polygraph test who was, himself, a lawyer and a psychologist – is based upon the theory that everyone falls into one of the four basic “behavioral styles,” and that how well people communicate with one another, work together and resolve conflicts hinges upon how their particular behavioral styles interact with one another. Although the DISC test and analysis is often used by HR professionals to create more effective managers and to guide executives in building successful teams and committees, anyone can learn to identify an individual’s behavioral style, and, thus, best approach that person in order to accomplish one’s goals. Using footage from well-known films, this presentation will illustrate the different behavioral styles and how they interact with one another – effectively and not so effectively.  Takeaways will include tools for quick assessments and strategies for getting where you need to be with hard-to-handle witnesses and even difficult clients.

2:30 pm ♦ Break

2:45 pm ♦ Tips from the Trenches: Plaintiff's vs. Defense Counsel ♦ Sean Gallagher & Marc Freiberger (1.25 HRCI & CA MCLE Approved)

This program will focus on things that investigators do in an investigation that leave opposing counsel salivating. What are the components of a defensible investigation, how are investigations attacked, and how does an investigator defend the investigation?  This program will discuss common mistakes in the structure or execution of an investigation that can open the investigator (and the investigation itself) to challenge.

4:00 pm ♦ Developing a Strategy for an Internal Investigation: An Insider's Look ♦ Gary Edwards (1.0 HRCI & CA MCLE Approved)

In this highly interactive workshop, participants will be presented with a mock workplace scenario for which they will develop an investigation strategy, working as a collaborative team. The presentation starts with a set of over‐arching principles associated with an internal investigation. As participants begin developing the specific elements of the strategic plan, there will be a discussion of best practices for addressing some of the most common but perplexing issues. This collaborative approach to problem solving is one that the presenter employs as an investigator with Facebook, working with his team, where they challenge each others' ideas to ensure they have thoroughly assessed all angles of a matter to reach the best possible decisions. Their practice of inviting each other to criticize their own perspectives and being open to alternative approaches, aside from engendering a very healthy camaraderie, ensures a higher probability of an effective investigation.

5:00 pm ♦ Program Adjourns & Networking Reception Begins at 1515 Restaurant, 1515 N. Main St., Walnut Creek CA 94596. Two drinks, heavy appetizers, and round trip bus transportation are included in the $20 price of the reception.

Saturday, November 15, 2014

7:00 am ♦ Continental Breakfast & Committee Meetings

8:00 am ♦ Trends in Workplace Investigations & California Legal Update ♦ Michael Robbins & Susan Woolley (1.0 HRCI & CA MCLE Approved)

Changes in federal and state laws have resulted in increased scrutiny of workplace investigations in employment-related litigation. This program will describe changes in the laws that govern investigations and the practical results of those developments. Specifically, we will examine how workplace investigations have evolved over the past decade (or so) in light of these increasing demands. Next, we’ll cover recent developments, then explore where workplace investigations are going. The presentation will include ways things have changed at all stages of the investigation. Just a few examples of things that have changed: (1) Defense counsel no longer conducting investigations for their regular clients and why this is so; (2) The need to investigate even when the employee has not complained internally (e.g., gone to the EEOC); (3) the need to reach conclusions, even in he-said-she-said situations (and how this is done); (4) the impact of the U.S. Supreme Court’s 2014 decision in Noel Canning v. NLRB and the effect of that  decision on investigation confidentiality issues identified in  Banner Health System d/b/a Banner Estrella Medical Center, 358 N.L.R.B. No. 93 (2012). Participants will obtain an understanding as to why there has been increased scrutiny, and, more importantly, how things have changed and how they are changing so that they can ensure their practices are consistent with the changes.

9:00 am ♦ Ethical Considerations Arising in Workplace Investigations ♦ Mark Mallery & Lisa Narrell-Mead (1.0 HRCI & CA MCLE Legal Ethics Credit Approved)

A number of challenges arise under the American Bar Association Model Rules of Professional Conduct when lawyers conduct, supervise, oversee and litigate workplace investigations. The goal of this presentation will be to have one CLE credit hour of the AWI Annual Meeting devoted to discussing those ethical issues, which include:

(1) the attorney-client privilege, and how it applies to contacts with employees of the client-organization;
(2) conflicts of interest, including concerns for lawyer who contact represented and unrepresented parties via social media;
(3) obligations to third parties;
(4) reporting client wrongdoing; and
(5) restrictions on lawyers who become percipient witnesses.

Although this presentation will focus on legal ethical rules governing attorneys, it is also relevant to private investigators who perform investigations for attorneys, and to human resources professionals who manage investigations conducted by attorneys. American Bar Association Model Rules of Professional Conduct to be discussed include Rules 1.6, 1.13, 1.16, 3.7, 4.1, 4.2, 4.3, 4.4, 5.3, and 8.4.

10:00 am ♦ Break

10:15 am ♦ Groundbreaking Credibility Findings in the EEOC's Five Factors ♦ Lynn Lieber & Robert Lieber (1.0 HRCI & CA MCLE Approved)

Using an Audience Response System (ARS) keypad, each attendee will instantaneously and anonymously record their responses to 50 questions posed regarding the two presenters. This enlightening exercise will concretely demonstrate that all individuals, specifically investigators, have biases about individuals they interview/interact with during an investigation. A short presentation on the roots and reason for bias will be followed by a live “role play” of an investigator/witness interview & “freeze frame” several times throughout the exercise to get audience feedback using the EEOC’s 5 Credibility Factors. The presentation will conclude with ways to use the EEOC’s Five Factors to enhance credibility findings and assist in developing clearly analyzed and well reasoned findings in investigation reports, and examples of the same.

11:15 am ♦ Untying the Knot: Identifying and Resolving Complex and Unexpected Situations During Workplace Investigations ♦ Lisa Buehler & Eli Makus (1.0 HRCI & CA MCLE Approved)

Every workplace investigation poses a unique set of factual disputes for investigators to pursue and resolve. Some investigations also give rise to unusual issues and dilemmas that may be new to investigators or create additional risk for employers. These issues are typically unexpected and can emerge in the middle of a witness interview or discussion with a client, forcing investigators to respond quickly. The presentation will capitalize on the speakers' 13 years' experience and those of other workplace investigators to identify a number of complex and unusual situations that may arise in a workplace investigation. Through a series of hypothetical scenarios, attendees will learn tools for recognizing and identifying issues that require urgent or special attention. The program will explore ways to resolve complex situations, including handling a witness who appears volatile or threatening, managing a client who interferes with an investigation, and receiving evidence that may have been improperly obtained by a witness. Attendees will learn tools for effectively addressing issues without disrupting the investigation or impacting an investigator's neutrality. Attendees will leave the program with a keener sense of when and how to react to unusual situations during an investigation.

12:15 pm ♦ Wrap-Up

12:30 pm ♦ Annual Meeting of Members

1:00 pm ♦ Adjournment

Members Registration ♦ Non-Members Registration ♦ Brochure ♦ Schedule ♦ Programs ♦ Speakers