Investigations in the Face of Whistleblower and Retaliation Concerns

Laws are proliferating that specifically forbid retaliation against employees who raise certain workplace concerns (often in certain ways) to their employers.   Perhaps these protections are overdue in some instances, but legislators are more often than not recognizing that employers can chill the willingness of employees, the very people who would know, to raise concerns about how a business is run, how individuals perform their duties, etc.  to the employer itself or even to an enforcement agency.

In this climate, employers are starting to look for proactive and “early detection” processes to solve problems before they arise.  However, even in encouraging employees to speak up, employers still hold concerns about being accused of retaliation by the complaining or reporting employee.

In some instances, these competing interests of wanting to nip problems in the bud while also trying to minimize the likelihood of a retaliation claim, employers are turning more to external investigators.   When an employer does utilize an external investigator, there is a stronger likelihood that the process will be viewed as being fair (though it may be imperfect), that the information uncovered and the conclusions reached were impartial, and that concerns about retaliation should decrease.

Employers and legal counsel should be aware of anti-retaliation provisions that affect the employer and be prepared to call on an external investigator, such as those at One Mediation, when personnel matters are raised.  Getting it right the first time can do wonders for morale, compliance, and long-term legal expenses related to litigation.