Workplace Investigation Sins 6 and 7: Failing to Protect the Process

January 10, 2012 Leave a Comment

Jennifer Keaton is a Workplace Investigator with One Mediation.

A recent article detailed 5 “sins” of a workplace investigation.   The article details five requisite skills for interviewing individuals, but it admittedly does not provide an exhaustive account of all the deadly sins.

Adding two more sins to this article, to make a complete “Seven Deadly Sins,” must include (6) not advising employee witnesses of anti-retaliation provisions that exist and (7)  requesting that employee witnesses not discuss the investigation with other employees and to advise the investigator if someone does discuss the investigation with them (while it is pending).

Advising witnesses about retaliation protections provides some assurance that participating in the investigation will not bring some measure of hardship or retribution on them, at least not without the threat of recourse.  This step is often a critical step to establishing rapport and obtaining cooperation from a witness.

Where an investigation requires multiple days’ of interviews and credibility determinations are a concern, an investigator should take steps to assure that witnesses do not influence the information solicited by the investigator.   One means to mitigate such influence is for an investigator to request (or have an employer direct an employee) not to discuss or communicate about the interview or the investigation with other individuals, at least until the investigation is complete, and to inform the investigator of any individuals who do discuss it with them or attempt to discuss it with them.  For some witnesses, the request is a relief as they can “blame” the investigator for their disinterest in discussing the matter with other employees or individuals. This kind of gag order also is effective in promoting accountability because it lets the interviewee know that someone else may “tell on them” if they discuss the interview.

Finally, if the investigator receives any reports of discussions of the investigation or the interview, it may factor into credibility determinations of witnesses and help illuminate certain motivations.   If an accused harasser, for example, spends time telling individuals what they “should say,”  ”better say,” or even asks what the interviewee “plans to say,” this conduct could constitute witness intimidation.  It may also suggest that the accused is trying to influence the outcome of the investigation, which may demonstrate retaliatory motives or admissions of misconduct.

All told, a workplace  investigators who fail to protect the investigation process may find that the investigation is compromised or otherwise ineffective.  Good pre-planning with regard to an investigation can assist an investigator with avoiding such fatal flaws.

Workplace Investigation training is critical to an investigator providing a proper and professional investigation.  One Mediation’s Workplace Investigation Training Modules provide a deep dive into the investigative process (Module I) and experiential learning opportunity (Module II) that provide a strong foundation for investigators in these areas.  It is offered two-times per year.

Filed under ADA Accommodations, Alternative Dispute Resolution, Discrimination, Employee Benefits, Hearing Officers, HR Consulting, Human Resources, Litigation, Mediation, Neutrals, Retaliation, Risk Management, Risk Managers, Sexual Harassment, Workplace Investigations

Retaliation Claims: The Interesting Statistics

January 9, 2012 Leave a Comment

Janice Harper, an anthropologist, recently published an article that highlights several interesting statistics uncovered by the Ethics Resource Center about Whistleblower claims.

One stat of interest is the fact that 39% of whistleblowers’ initial complaints were not investigated by the employer.  That stat, when taken together with retaliatory conduct towards the whistleblower, suggests that perhaps a reason for the employer’s lack of concern and action was precisely due to the fact that it already knew the complaint was legitimate and true, but an undesirable truth.  Hence, the effort to avoid the reality and to sweep it under the rug.

The proliferation of employment laws over the past twenty years have begun to automatically come with anti-retaliation provisions in them.  Indeed, in the civil rights context, the Equal Employment Opportunity Commission’s statistics demonstrate significant increases in the filing of retaliation charges by employees.  This trend is evident in other contexts, as well.

The rise of retaliation claims has resulted in some employers taking employee complaints more seriously and taking the additional time to review them, even those they believe are entirely contrived.  The reason?   There are many, but some of the more common reasons include the attempt by employers to identify problems early and fix them before matters escalate to litigation and the attempt to create a demonstrable pattern of taking issues seriously (rather than appearing to be the broom-wielding employer that sweeps concerns under the rug).

Due to this trend, employers have begun cross training their in-house counsel, risk managers, and HR professionals to conduct proper investigations of employee concerns and complaints.  Additionally, external workplace investigators have also become more common, the recent creation of the Association of Workplace Investigators is an indicator of this growing industry.

In Georgia, employers typically turn to attorneys as external investigators into workplace complaints.  These attorneys, some of whom have joined One Mediation, are well qualified in being able to quickly respond to an employee’s concerns in an impartial and well-documented and reasoned fashion.   The use of independent workplace investigators with employee concerns and complaints has gained increasing acceptance as a justifiable business expense for a variety of reasons that go well beyond litigation concerns and extend to increased morale, retention of skilled employees, and economic growth potential.

 

 

Filed under ADA Accommodations, Alternative Dispute Resolution, Arbitration, Discrimination, Employee Benefits, Employment, Employment Contracts, HR Consulting, Human Resources, Litigation, Mediation, Retaliation, Risk Management, Risk Managers, Sexual Harassment, Workplace Investigations

Workplace Investigations: When? Who? What? But, most of all: How?

January 5, 2012 1 Comment

Lorene Schaefer, Esq., Workplace Investigator in Atlanta, Georgia

Employees have exerted leverage upon employers to “take note” when they raise concerns about discrimination, harassment, retaliation and more.

Recently, the Association of Workplace Investigators was established – an entity that began as a California-focused entity that quickly became a national organization.   What’s the rush?  Employers are finding that it is not only a good practice to review personnel complaints for morale purposes, but also as a means to potentially reduce liability risks (whether with regard to the complaint at hand or to demonstrate a pattern of taking employee complaints seriously).

Articles abound on when to conduct an internal investigation, who should conduct an internal investigation, what should be investigated, but these articles invariably note that a critical factor of HOW these investigations are conducted is often overlooked.  Many workplaces do not have an employee who has the skills or know-how to conduct a proper investigation.  Due to this fact, many employers looked to lawyers or Private Investigators to conduct them.  Later, HR consultants also marketed investigative services.  Generally, it was happenstance as to who could or should conduct an internal workplace investigation.

With states beginning to regulate this “industry” or workplace investigators and the establishment of professional organizations to help enhance the skills, knowledge, and standards of these services, employers arguably have greater guidance in ensuring that they respond well to employee complaints.  However, employers should also be exploring who within their organizations would benefit from greater training in order to conduct a workplace investigation.  Not only does the Association of Workplace Investigators provide training, but other entities such as SHRM and One Mediation, provide workplace investigation training.

Risk Managers, HR professionals, attorneys and security professionals whose practices address workplace matters should add this training to their resume not only to enhance their credentials, but to ensure that their services reflect the industry standards that are being established.

 

 

Filed under ADA Accommodations, Alternative Dispute Resolution, Discrimination, HR Consulting, Human Resources, Litigation, Mediation, Mediation Coaching, Retaliation, Risk Management, Risk Managers, Sexual Harassment, Workplace Investigations

Employment Lawsuits: When they are bad, they are really bad.

January 3, 2012 Leave a Comment

Employment lawsuits often involve matters such as pay and wrongful terminations.   But some suits are much more compelling than others…even making the Headlines.  Case in point:  Skechers.

Employers sometimes learn the hard way that personalizing a termination can create a slew of bad press and viable legal claims.  What attorney would not want the case where the big-bad-employer appears to pick on the employee even after it’s kicked the employee to the curb?   Those “insult-to-injury” claims are the cases that can really tick off a jury!

With Skechers, the allegations appear to be that it terminated a marketing executive for “allowing” a recently departed employee purchase Skecher shoes with an “employee discount.”   The sin appears to be that the former exec either knew about the post-employment purchase or should have known about it.  As a result, the exec received her pink slip.

One can only imagine what a true audit on the usage of the employee discount would demonstrate…

In any event, the “insult to injury” was that when the exec landed a new job, her reference at Skechers threw her under the bus.  The new job evaporated.

While Skechers may have told the new employer the truth, the whole truth and nothing but the truth, holding its tongue arguably would have been a far more prudent path.  Indeed, many employers have policies that forbid the provision of references or any other information beyond “dates of employment and last job title.”   The reason:  less liability risk.

With the expansion of whistleblower protections, employers must either train its employees on the ramifications of providing opinion-based statements that could be later used as evidence of retaliation by even a former employee.  Some of these anti-retaliation provisions in workplace laws are not only permitting liability to accrue against the employer, but also are permitting individual liability against the “speaker.”

Silence, often, is golden.

Filed under ADA Accommodations, Alternative Dispute Resolution, Arbitration, Discrimination, Employment, Employment Contracts, Human Resources, Litigation, Mediation, Mediation Coaching, Neutrals, Retaliation, Sexual Harassment, Workplace Investigations

Investigations in the Face of Whistleblower and Retaliation Concerns

December 14, 2011 Leave a Comment

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.

 

Filed under ADA Accommodations, Alternative Dispute Resolution, Arbitration, Discrimination, Employee Benefits, Human Resources, Litigation, Mediation, Neutrals, Retaliation, Sexual Harassment, Workplace Investigations

Mediation as an Employee Benefit

December 12, 2011 Leave a Comment

Apparently, One Mediation isn’t the only entity to tout the benefits of mediation…as an employee benefit.  While many employers are beginning to look at establishing internal conflict resolution programs using a mediator (or other third party), other employers are recognizing that their employees need greater access to resources and tools that can assist with resolution to issues and problems in their lives that bleed into the workplace or cause presenteeism/absenteeism.

One Mediation offers an option for employers to provide discounted mediation services to its employees as a benefit of employment.  Through this Family Matters Program, employees can gain greater access to mediators for family related matters:  divorce, child custody and support, parenting plans, modifications to child-related matters, elder law, long-term care/caregiving matters, and more.

Call One Mediation (404-720-0599) for more information and the latest version of the Program offering.

Filed under ADA Accommodations, Alternative Dispute Resolution, Arbitration, Assisted Living, Child Custody, Child Support, Co-Parenting, Collaborative Law, Divorce, Elder Care, Elder Law, Elder Law Arbitration, Elder Mediation, Employee Benefits, Employment, Employment Contracts, Equitable Division of Property, Estate Planning, Guardian, Human Resources, In Home Care, Long-Term Care, Mediation, Mediation Coaching, Neutrals, Nursing Home, Power of Attorney, Probate Litigation, Property Division, Senior Remarriage, Separation and Divorce, Wills and Estates

Mediation Operates for Opera Dispute

December 8, 2011 Leave a Comment

Labor talks have utilized mediation and arbitration for decades.  Professional athletes and professional artists, even opera singers, have used these processes to get at the problem of compensation, work conditions, and more.

However, the use of mediation and arbitration in non-union workplaces on these same issues in a “pre-litigation” phase has not had the same degree of traction.  Why?

Perhaps the cost.  Perhaps the suggestion that an employer is “not in charge.”  Perhaps the protections that now exist under federal law (and in many states).  Perhaps the thought that only litigation will create necessary change.

Whatever the reason, non-union workforces and their employers may be missing great opportunities to nip issues in the bud.

Filed under ADA Accommodations, Alternative Dispute Resolution, Arbitration, Collaborative Law, Employment, Employment Contracts, Human Resources, Litigation, Mediation, Neutrals, Workplace Investigations

Employers – Increase Your Benefits!

August 21, 2011 Leave a Comment

Those “survivors” who are still employed may be enjoying lower pay, more duties, and decreased benefits – a typical scenario in this particular economy.  It is not that the business owner or the corporation is necessarily heartless – indeed, many are heartbroken and took pride in employing individuals and supporting their families.  But, now…

Employers have been challenged to “think outside the box” in this economy.   For employee morale, it does not have to be overly complex to get there or to add another expense to the bottom line.   How?   Think discounts, coupons, and “specials.”

Wherever you are located, there are businesses who want to access your workforce…no matter how small.  Ask local retailers and service providers if they would be willing to offer your employees a special deal – chances are, they would.  Got an ice-cream shop nearby:  How about a free scoop for a certain week?  Got a dry cleaners, a UPS Store, or a fast-food restaurant in the vicinity:  How about a 15% discount for your employees?  Large employers – such as Turner Broadcasting and others – already do this sort of bartering.  So can you.

Indeed, give One Mediation a call about its discount programs for employers.  You’ll find that its Family Mediation Programs (elder care, separation and divorce, and Divorce Med-Arb) are a fantastic complement to typical health insurance, Employee Assistance Programs, and Pre-Paid Legal programs…not to mention a nice boon to the related issues of ADA accommodations and FMLA and Sick Leave.   Why not help employees in ways that are tangible, but cost-free to the business?

I can’t think of a reason not to start making calls.

Filed under ADA Accommodations, Alternative Dispute Resolution, Arbitration, Assisted Living, Child Custody, Child Support, Co-Parenting, Discrimination, Divorce, Elder Care, Elder Law, Elder Law Arbitration, Elder Mediation, Employee Benefits, Equitable Division of Property, Estate Planning, Guardian, Human Resources, In Home Care, Long-Term Care, Mediation, Nursing Home, Power of Attorney, Probate Litigation, Property Division, Retaliation, Separation and Divorce, Sexual Harassment, Wills and Estates

Reasonable Accommodations & the ADA & HR

December 9, 2010 Leave a Comment

HR professionals should give their sick leave and ADA-related policies a quick review this season.  Many employers have a policy that permits their provision of “reasonable accommodations” to disabled employees, but few really explain how the “interactive process” works when creating these accommodations.

The University of Ohio has a fairly detailed process that involves multiple steps, review of accommodation effectiveness, and other smart steps for compliance purposes.  

Employers should take note of good processes, but also consider Med-Arb as part of the process.  “Med-Arb” is shorthand for Mediation-Arbitration, a hybrid version of these processes.  Employers should give some consideration as to whether their interactive process should involve an individual, whether an employee or external vendor, to serve as a “Mediator and Arbitrator” Neutral over the interactive process.  

In so doing, the Neutral hears both sides ideas about what is and is not needed to assist an employee with successfully performing the duties of the position in light of the disability.  The Neutral can review medical information, ask questions, and attempt to forge an agreement on what accommodation would be appropriate.  If an agreement cannot be reached, then the Neutral ”makes the call” on what accommodation will be made – thereby transitioning to an Arbitrator.

Employers should give significant consideration to the use of an external Neutral in these ADA situations, as it may reduce the likelihood of discrimination, retaliation and interference claims by employees.

Filed under ADA Accommodations, Alternative Dispute Resolution, Arbitration, Employment, Hearing Officers, Mediation

New Panelist Burke Johnson joins One Mediation

October 6, 2010 Leave a Comment

Burke Johnson graduated from Emory University in 1984 and from the University of Georgia School of Law in 1987. While in law school, he was a member of the Editorial Board of the Georgia Law Review.

Burke has handled a wide variety of cases in his career, including matters related to elder care and adult guardianships; probate and estate litigation; personal injury matters arising from motor vehicle liability claims, premises liability claims (including claims for negligent security) and product liability; construction defect claims; insurance coverage claims; life, health and disability insurance claims; and ERISA benefit claims.

Burke’s experience in trying and mediating a myriad of cases over the course of his legal career provides him with a keen ability to identify the issues and bring parties together to settle cases during mediation.

Burke previously served as the Chair of the Atlanta Bar Association’s Elder Law Section. He is a registered neutral with the Georgia Office of Dispute Resolution and he has received an AV Preeminent Rating from Martindale Hubbell.

More about Mr. Johnson can be found by clicking here.

Filed under ADA Accommodations, Alternative Dispute Resolution, Arbitration, Child Custody, Employment, Employment Contracts, Hearing Officers, Mediation, Mediation Coaching, Neutrals, Separation and Divorce

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