Seven Tips for Selecting an Investigator to Conduct A Fair, Unbiased and Professional Workplace Investigation

  From WinWinHR.com (October 13, 2012).

I spoke this week at the HR Star Conference here in Atlanta and at the conference had a great discussion   with some HR professionals on the importance of conducting fair, unbiased and professional workplace investigations.  One of the HR managers mentioned that her company recently received a complaint from a current employee complaining that he was being subjected to a racially hostile work environment.  As I regularly conduct third party, neutral investigations into allegations of workplace misconduct and serve as an expert witness on workplace issues, our conversation turned to the benefits of using an independent investigator as compared to conducting the investigation internally by HR or by the employer’s regular legal counsel.

We all agreed that promptly investigating allegations of workplace misconduct, like discrimination, harassment, retaliation, and hostile work environment, is not only a good business practice but is also important legally.  An employer demonstrates (to its employees and enforcement agencies) good faith and adherence to anti-discrimination and fair treatment policies and laws by promptly investigating issues.  However, unless the investigator is independent and, perhaps more importantly, perceived as independent every conclusion drawn by the investigator is going to be questioned by employees and potentially by enforcement agencies and perhaps plaintiff’s counsel.

A recent  jury award of $313,206 to an employee who sued alleging retaliation demonstrates the importance of the perception of a fair and impartial investigation.  In discussing the jury’s award after the case several jurors said that they considered the plaintiff to have been the victim of an unfair and biased investigation process.  Here is an excerpt from a newspaper article discussing the case:

“A grievance is supposed to be investigated fairly, without any bias,” said juror Debi Mitchell. “This was not a fair and impartial investigation … I’m glad we got to show that their behavior was wrong. I hope they can change the way they treat employees and create a better work environment.”

It is also important for employers to recognize that if they choose to use their regular legal counsel (either in-house or outside counsel) to conduct a workplace investigation that their regular legal counsel could become a fact witness in any future litigation.  If the investigating attorney becomes a fact witness, any applicable attorney-client privilege would likely be waived.  Moreover, the attorney and his or her law firm would be conflicted out from the ability to represent the employer in the litigation.

Recognizing the importance that an investigation be impartial and objective and anticipating that the complaint has the potential to end up in litigation, the person selected to conduct the investigation should:

  1. be someone the parties view as impartial;
  2. be familiar with applicable employment laws and the employer policies;
  3. have the time available to devote to conducting a prompt and thorough investigation;
  4. have investigation experience and good interviewing skills;
  5. be someone with good communication skills who will be an effective and credible witness should the complaint result in litigation;
  6. recognize the importance of confidentiality and be able to maintain confidentiality; and
  7. be able to deliver a complete and accurate report.

Lorene Schaefer is an experienced litigator, former general counsel, and highly sought after workplace investigator.  Contact Lorene directly at lorene@onemediation.com .

Are Workplace Investigations Fair?

U.S. employers are becoming more regulated in how they manage employees.  With this increase in regulation, risk management practices to increase compliance and to mitigate liability risks also are increasing.  Depending upon the state an employer is in, workplace investigations may be statutorily mandated or simply an incredibly wise step in response to workplace misconduct reports or complaints.  But, can a workplace investigation really be fair?

A recent article offers some tips to increase actual and perceived fairness surrounding workplace investigations.  While some of these suggestions include additional workplace processes (such as hearings), it correctly points out that investigations should be done promptly and focus on “the evidence.”  Seems simple, right?

Equally simple, it would seem, is that investigations be performed by individuals who have training or experience doing them.  A case in point is a 2011 lawsuit where an employer allowed some of its executives, who had no training, perform an investigation into sexual harassment allegations.  Stewart v. Trans-Acc, Inc., 2011 U.S. Dist. LEXIS 44414, at *50 (S.D. Ohio, April 25, 2011).  The employer lost a major defense by failing to provide a reasonable investigation.

Workplace investigation training is critical and offered three times each year by One Mediation’s workplace investigators who have collectively litigated Labor and Employment matters for over 25 years.  The next seminar is September 29, 2012 in Atlanta, with limited space.

 

When the Rejected Seeks Revenge: When Sexual Harassment Is Both Quid Pro Quo & Retaliation

A North Dakota judge recently became a poster-child for why workplace romances often are banned:  natural human emotions often prompt unlawful or “high liability risk”  reactions.  In this case, which this article excerpts key portions of the investigation’s report, a judge’s efforts to date a court reporter were rejected.  In response, the wounded feelings of the judge apparently resulted in his misuse of his position and authority to “get her back.”

Apparently, the judge continued to pursue the court reporter by calling her into his chambers, emailing her to talk, etc.  Ultimately,the investigation noted, the court reporter emailed the judge:

“We are COWORKERS. Start acting like it! You are making me hate this job and feel ill having to come here because I don’t want to deal with you,” the woman wrote in a June 29, 2011, email. “There is no ‘problem,’ other than that I didn’t go along (with) your advances so now you are trying to make up problems to try and get rid of me, just like you told me you would do (get rid of me) if this were a private law firm.”

In one email, the court reporter summed up the problem of sexual harassment in the workplace.  When the advance is unwelcome, the advances should stop.  When they don’t stop, the pursuit can create a hostile work environment.  Additionally, when the pursuer is spurned and then attempts to make the workplace unpleasant for the person, the conduct smacks of quid pro quo (“this for that”)sexual harassment because the benefits of employment are adversely affected – essentially making good on the threat that the person will only get to work in continued peace, on a regular and fair playing field if the person consented to the sexual advances.

Worse yet, the “revenge” for not accepting the advances is retaliation and, likely, unlawful retaliation.

In this case, the judge retained his position, but it appears that he will be heavily supervised moving forward and minimal contact with female co-workers will occur.  It is likely that the fall-out for this judge has just begun and that he can expect local lawyers to request his recusal on cases that involve sexual matters, harassment, domestic violence, discrimination, and more.

Workplace Investigations & Poor Leadership

Poor leadership is bad business.  It also can create bad press, increase liability risks, and result in the loss of talented and well trained employees.   A North Dakota law enforcement agency is a recent example:  http://bit.ly/LpV0ft

Employee’s internal complaints can be an early warning system for employers, if they are prepared.  Too often, employers treat internal complaints as just a “run-of-the-mill” employee gripe or grumble.   A prepared employer is prepared to address employee concerns rather than sweep them under the carpet.

Employers who are concerned about their workforce are prepared to handle the grumble, along with the high stakes concerns shared by employees.   Responding to these concerns appropriately can make a huge difference in the amount of liability risks that an employer may face, particularly when problems are identified and solved well-before they might escalate into an attrition problem or a law suit.

Workplace Investigations into employee concerns can be performed by an appropriate employee or by an external, independent investigator.  Their review of the issues are commensurate with the scope of the complaint and often can uncover the actual cause of the problem, identify the symptoms of the problem, and ways to correct the problem or avoid the consequences in the future.  Whatever the outcome, workplace investigations sometimes involve business analysis and solutions – as did the recent North Dakota investigation – that can assist an organization with a more positive and solutions-focused future.

MPR’s “Romance in the workplace can be a minefield”

As a follow-up to the previous post on workplace investigations and Best Buy, more information has become available with plenty of “lessons learned” for human resources professionals, employers, attorneys, and more.

http://minnesota.publicradio.org/display/web/2012/05/15/workplace-relationship/

Best Buy’s Workplace Investigation: Quick, Effective, Newsworthy

Best Buy recently received and published highlights from an investigation in to several allegations of misconduct by higher level executives and others.  The lessons from this investigation are still to be culled, but the bottom line is that the company responded swiftly to unsavory allegations, a response that has left them in control of fixing the problem(s), responding credibly to employees, customers, and shareholders with lemonade rather than lemons, and demonstrating a commitment to values-based leadership.

Is your company prepared to respond promptly, credibly, and with integrity to allegations of misconduct?  Ensure that your Risk Management team is prepared.  One Mediation can help through its workplace investigation training modules, professional investigators, and training offerings.

 

It Cost AT&T over $5 Million…Why Workplace Investigations Must Be (and actual be) Part of an Employer’s EEO/Harassment Policy

Ouch!  AT&T recently lost an employment lawsuit that resulted in $5 Million in punitive damages.

In that case, AT&T was accused of failing to provide religious accommodations and retaliating against a Muslim employee.  In slapping AT&T with these damages, the court demonstrated in very clear terms that it was not impressed with employment policies that merely pay lip-service to the principles and rules they dictate.  At issue here, AT&T had satisfactory policies  regarding discrimination, harassment, retaliation and accommodations, but it did not implement them satisfactorily.  Specifically, the lack of a meaningful workplace investigation into this employee’s complaints about religious discrimination was inexcusable.

Employers and Human Resources professionals should be mindful of the needs for good policies in their workplaces.  However, they should be prepared to implement them with a process or procedure that includes appropriate follow-up on workplace complaints of harassment, discrimination, and retaliation and already have a ready-list of external sources, such as One Mediation, for more substantive workplace investigations and mediations, in order to resolve matters before further damage to morale, compliance, or the bottom-line occurs.

Workplace Investigation Training Module I Approved for 6.5 CE Hours (HRCI)

This advanced program, along with the Module II Practicum, is designed to cross train in-house counsel and to enhance the skills of Risk Management and HR professionals for conducting investigations into bullying, discrimination, harassment and retaliation.  Agenda:  http://onemediation.files.wordpress.com/2012/03/workplace-investigation-training-module-i-agenda2.pdf

Module I is day-long seminar that provides a detailed overview of how properly to investigate concerns or allegations of personnel misconduct in a thorough, fair, and well-documented manner that contemplates potential litigation. Significant time is spent on investigation plans, document gathering, techniques for interviewing witnesses, and report writing. Both Module I and Module II focus on putting information into action through group and individual activities that reinforce the learning objectives.
REGISTRATION:
Module I is offered in Buckhead on April 20, 2012, June 15, 2012 and September 29, 2012, starting at 9:00 a.m. and ending at 4:45 p.m. Early Bird Registration ($295) closes 30-days before the session. Regular tuition: $395.00.
Module II Practicum is offered on a Friday/Saturday format. In 2012, it is offered two times: June 22-23 and again October 5-6. Regular tuition: $995.00 (Early Bird: $825).
Registration for both Module I and the Module II Practicum is $1,300 (Early Bird $1,100).
FACULTY:
Faculty include Lorene Schaefer, Esq., Jennifer Keaton, Esq., and Suzanne Deddish, Esq. These attorneys and workplace investigators have significant Labor and Employment litigation experience regarding EEOC Charges, Sarbanes-Oxley Charges, tort claims, and internal grievances that involve concerns of harassment, discrimination, bullying, poor leadership/supervision, and whistleblower and retaliation concerns. They put their litigation and investigation experience to work with these active-learning seminars.
Call One Mediation for more information (404-720-0599).

Internal Complaints….The Lids Fly Off When!!

A 37 Page Complaint…recently, a major agency received this written complaint from a high ranking official in the organization that blasted an even higher ranking official.  Politically motivated?  Do-gooder doing the right thing?  Someone who’d “had it up to here”?

Too often, employers dismiss internal complaints rather than move them into a credible investigative process because they are too concerned with what may appear (and may actually be) questionable motives in raising the concern rather than focusing on “clearing the air” to determine if a problem exists.

Employers should have an investigative process in place before a need to investigate internal concerns arise.  Some employers utilize “hot lines,” while others have “open door policies” and harassment policies with a stated complaint process.  These options often suffice, but employers who have been through contentious litigation regarding the workplace usually can point to opportunities that they wished they’d offered to hear about the concern before hearing it from opposing counsel, a governmental agency, or through a court pleading.

Interested in learning about options for your workplace?  Contact One Mediation regarding its internal dispute resolution programs, E-Resolved hotline options, and more.  Simple solutions at work!

 

Workplace Investigation Training: Module I (Agenda)

One Mediation’s Workplace Investigation Training is hands-on, experiential learning.  The agenda for Module I can be found by clicking here: Workplace Investigation Training Module I Agenda.

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