Your Mediation Solution
February 9, 2012 Leave a Comment
KPMG has been ordered to preserve the hard-drives of many perhaps “similarly situated” auditors, not just the hard-drives of the two auditors suing them, in an underpayment of wages case in New York. It may be time to either mediate the e-discovery matter (see list of qualified E-Neutrals) in this two-party case that apparently has class-action exposure!
February 2, 2012 Leave a Comment
Jennifer Keaton is an attorney and mediator.
Recently, Deborah Moskovitch, an attorney and divorce expert, recently published an article in the Canadian HRReporter entitled, “Helping an Employee through Divorce.” Her article notes that an employee who is going through a divorce impacts the workplace to the tune of about $8,600! Common sense certainly tells us that the divorce process usually results in a distracted and less productive employee, so that figure appears credible.
What can an employer do to help an employee who is facing the uncertainty and stress of the divorce process? Paying for the divorce attorney is out of the question, but there are practical things that supervisors can do to help the situation. Among Ms. Moskovitch’s tips is the age old rule of thumb: keep a professional distance.
She posits that when a supervisor discloses personal information, he or she not only contributes to the distraction, but also may deter the employee from getting the professional services (psychological, financial, and/or legal) that truly are needed. When an employee looks to others in the workplace who have been through divorce, there is a risk that the employee will rely on that information and come back for more.
The bottom line is that keeping the personal matters out of the workplace is impossible, but it can be minimized and minimized in a manner that does not have to be cold-hearted.
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.
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.
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.
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.
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.
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:
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.
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.
One Mediation provides a broad scope of
neutral services that include traditional
mediation and arbitration, but also provides
neutrals to preside over grievance hearings and
investigators for non-surveillance
investigations.
