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

Internal Workplace Dispute Resolution Programs

December 2, 2011 Leave a comment

Unions and many public employers have utilized “grievance processes” for decades.  In essence, these grievance processes are an early, dispute resolution program.  However, they are predicated on an adversarial model of the employee vs. the employer.  As a result, these processes do not result in cooperation or even problem-solving, but rather on who was right.  For some, the grievance process is merely a necessary step to get to litigation rather than to get to resolution.

Litigation has its place.  However, in many cases, the parties, the lawyers, and usually every member of the jury, is able to point to missed opportunities to solve the problem or de-escalate the issue that prompted the lawsuit.   Recognizing the expense of litigation and the wisdom of conflict resolution, some employers have instituted “workplace mediation” programs, including in many segments of the federal government.

Some of these programs involve training co-workers in mediation, while others involve “in house” mediators or a panel of contract mediators.   They all, however, appear to have a common goal to facilitate discussion and problem-solving before the problem morphs into an abyss of distrust, gamesmanship, and other unproductive and unhealthy behaviors.  Often, a policy is in place that permits employees an easily accessible means to access the process, often through the human resources department.

In a workplace mediation, a third party works with the individuals to understand the problem, its business implications, and its interpersonal implications in order to assist with problem-solving and future-oriented planning.  From such discussions, the participants can often clear the air, gain a better understanding of the problems, and look into ways that will help them move forward in a reasonable manner.

Sounds good, doesn’t it?  And, it is a simple application of thousands of years of the human experience on handling conflict productively….

 

 

Filed under Alternative Dispute Resolution, Discrimination, Human Resources, Mediation, Sexual Harassment, Workplace Investigations

Workplace Investigations & Email

September 12, 2011 Leave a comment

We’ve seen the TV shows and movies where a computer forensics expert uncovers some super secret electronic file or finds the files that “were deleted.”    Oftentimes, uncovering electronic communications that show workplace misconduct do not require such an expert, rather just a quick search of the email server.

Employers that routinely allow (or expect) employees to be available or to communicate via email should evaluate whether workplace policies are clear about the expectations on how employer-provided email is used, not only to be sure that the employer complies with all laws, but also to ensure that the availability of the email account is not abused.

Oftentimes, employees will use employer-provided email accounts for personal or for matters unrelated to work.   While a personal email here or there may not be problematic, the mass forwarding of jokes, cartoons, videos, and more can be problematic from a cost perspective, as well as a workplace management perspective.

For employers who have limited server space for email, frequent emails of jokes and more throughout segments of the workforce simply “takes up space.”   Talk to your IT department or consultant – with an election year coming up, there frequently is a spike in “editorial emails” that can cause issues or all-out problems.  Learning that there is a need for “another server” when the problem is “social not-working” can be a real dollar saver.

As a workplace management issue, emailing jokes, videos, and more is generally not professional and decreases productivity.   What is worse is that many times, these “joke” emails are ones that may only be funny based upon stereotypes of certain races, sexes, etc.   When those forms of humor are passed around a workplace, they may offend an employee, causes a decrease in morale.  Worse yet, the email is blown-up in front of a jury as evidence that the manager who sent it really does harbor racist, sexist, or other unlawful animus.   The problem is prevalent and often makes the news.

For employers with complaint policies regarding discrimination, harassment and/or retaliation, investigations of such complaints now involve review of email accounts, if not also review of other electronic records of cell phone calls, IMs, text messages, voice mail messages, and more.  Indeed, Human Resources professionals are going to these electronic records of communications even before talking to the individuals themselves.  Why?  Because what is captured in these electronic records are often much more objective measures and very indicative of feelings, beliefs, and misunderstandings than memories.

 

Filed under Alternative Dispute Resolution, Discrimination, Human Resources, Retaliation, Sexual Harassment, Workplace Investigations

“Reverse” Sexual Harassment

September 6, 2011 Leave a comment

Hear the term “reverse sexual harassment” and most folks recognize that this phrase describes sexual harassment that is “female to male.”   However, it is still plain old “sexual harassment.”

While such reverse sexual harassment has resulted more than a few plot lines in movies, it has been viewed as situational comedy because it seems to buck the stereotype of the aggressive male in hot pursuit of the dewy female.   In the real world, it is not so funny.

The EEOC and the law do not buy into the idea that only women can be sexually harassed.  The law is far broader and prohibits harassment in the workplace that may be male to female, female to male, or same-sex/gender.  A recent example of this sort of role reversal demonstrates that Title VII protects individuals from harassment of a sexual nature in the workplace, no matter the victim’s sex (or sexual orientation).   Indeed, some legal experts suggest that employers should be even more wary of a “reverse” harassment or discrimination scenario where juries may find cause to issue greater punitive damages – in part – because what’s good for the goose, is good for the gander.

The moral of the story for employers is to take all complaints of sexual harassment or related inappropriate conduct seriously by conducting an appropriate and reasonable investigation, whether using an internal investigator or an external workplace investigator, like those at One Mediation.

 

 

Filed under Alternative Dispute Resolution, Arbitration, Discrimination, Employee Benefits, Employment, Employment Contracts, Human Resources, Mediation, Neutrals, Sexual Harassment, Workplace Investigations

Rights in a Workplace Investigation

August 31, 2011 Leave a comment

Employers have a legal obligation to maintain a safe working environment, a mandate that includes ensuring that interpersonal contact is not unlawfully harassing or discriminatory.  When concerns about harassment or discrimination, among other issues, arises, an employer should conduct a “workplace investigation” to determine whether a problem does in fact exist.

Attached is an interesting piece on the rights of employees during an internal workplace investigation.

Filed under Discrimination, Human Resources, Neutrals, Retaliation, Workplace Investigations

Hide and Go Seek: Finding a Competent Workplace Investigator

August 26, 2011 Leave a comment

Where on earth can you find someone to do a proper workplace investigation when the anonymous, confidential, overly detailed, woefully under-detailed or other internal complaint arises that alleges misconduct such as harassment or discrimination?

1.   Look at your internal options.

Often employers will assign an investigation or “follow-up” on an employee complaint to a current employee.  Sometimes, this arrangement is just fine.   In other instances, it is fraught with problems straightaway.  Some red flags include:

  • The employee is investigating allegations involving an individual on a higher rung of the corporate ladder.
  • The employee has personal relationship(s) with the witnesses, etc. that may affect the apparent objectivity of the review.
  • The employee has never investigated misconduct allegations and does not have the requisite skills to do so.
  • The employee has other job duties that need to be done at the same time the investigation is to be performed.
Where these red flags are waving, it is time to explore other options for addressing the complaint (and getting to a resolution).

2.   Call your attorney.

Complaints about workplace misconduct often implicate state or federal laws.  By contacting your attorney, an employer not only is tapping an expert in the field’s knowledge, but can speak confidentially and strategically with legal counsel about the liability exposure and how to limit it before a lawsuit emerges.

Your attorney also is likely able to recommend a handful of qualified investigators who can assist you at a rate that is less than your attorney’s hourly fee.  Often, lawyers who are sole practitioners are called upon to conduct these investigations (though consult your state’s laws about the need of an investigator to hold a private investigator’s license).

Why would an attorney refer the investigation to another attorney?  Sounds counter-intuitive to the business interest, right?  In actuality, it may not be.  Investigators may be “witnesses” in litigation that arises out of the complaint.  For attorneys, most ethical rules prohibited attorneys from serving as legal counsel and a witness in the same matter.  Thus, the referral may be an effort to preserve the ability to represent the employer in later litigation (where the fees will almost always be more lucrative than in doing the investigation).

3.   Contact Human Resources consultants.

Many Human Resources consulting firms have investigation services.  Many times, these consultants are not attorneys.  Lack of a J.D. degree, however, does not mean that an experienced consultant is unaware of the applicable laws.  However, when the investigator is called to testify at trial, a jury may find it “of interest” that the investigator did not have that particular credential.

4.   Contact security and neutral services firms, such as One Mediation.

Other resources where a workplace investigator may be found include security businesses and neutral services firms.   “Security” business include those businesses that provide risk management and loss prevention services.  Often, these firms not only provide security services, but also have a bank of private investigators and even polygraphers that are well versed to review a misconduct complaint.  These firms often are more geared toward theft and embezzlement, but several do have experience with discrimination and harassment issues.

Neutral services firms typically have a bank of individuals who serve as mediators, arbitrators, and hearing (grievance) officers.  Often these individuals have significant knowledge of employment laws and also are lawyers.  Because they are contracted for a project – the investigation – their impartiality is bolstered by the lack of an ongoing relationship with the company.  In Atlanta, Georgia, for example, One Mediation is such a firm that has four attorneys who serve specifically as workplace investigators.  In this respect, employers easily can find and retain a workplace investigator when the need arises who can respond quickly.

 

Filed under Alternative Dispute Resolution, Arbitration, Discrimination, Employee Benefits, Human Resources, Mediation, Neutrals, Retaliation, Sexual Harassment, 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

Workplace Investigations of “Hostile Work Environment” Complaints

June 29, 2011 Leave a comment

The fallout of harassment, discrimination and retaliation complaints and investigations can be just plain ugly.

Take for instance a recent article on a governmental entity’s response to a complaint against elected officials.  In this case, a Human Resources professional alleged retaliation, among other issues, against three elected officials.  The article suggests that the Interim Manager conducted the investigation into the allegations…that were made against his “bosses.”  His conclusion was that no “illegal” conduct occurred, but no other mention was made (at least in the article) as to the other allegations that the initial complaint appeared to make.

This one is just ugly.  Not only is the appearance of an unbiased investigation destroyed by not using an independent investigation, but the investigation appears to have been so narrow that it ignored some of the  factual allegations that were made altogether.   It is doubtful that the complaining employee will be satisfied with this scenario – not because her allegations were not substantiated, but because the process used appears to be flawed and incomplete.

Employers should follow-up with employee complaints of harassment, retaliation and discrimination promptly.  However, employers also should take the time to assess who should follow-up or more formally investigate the complaint before taking matters into their own hands.  Complaints against high-level officials, such as the case here, almost always should involve an external, impartial evaluation by a third-party investigator.  To do otherwise leaves the nearly irrefutable conclusion that the investigation was flawed and biased from the outset.

Filed under Alternative Dispute Resolution, Arbitration, Discrimination, Employment, Human Resources, Mediation, Neutrals, Retaliation, Sexual Harassment, Workplace Investigations

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