Tag Archives | workplace investigations

The importance of investigator neutrality

When a workplace investigator is engaged to look into a complaint such as discrimination or harassment, it is absolutely critical that the investigator be — and appear to be — a neutral party.  Sometimes an employee is the appropriate person to investigate (e.g., someone in HR), and sometimes an external investigator should be brought in (e.g., if the allegations concern someone very high level).  Whatever the approach, though, an entire investigation can be undermined if the investigator is seen to have a bias in favor of one side or another.

Take the currently-on-trial case of Ellen Pao v. Kleiner Perkins, dubbed by some as the Silicon Valley trial of the year.  Ms. Pao sued the big-time venture capital firm for sex discrimination and retaliation, claiming she had was pressured into having an affair with a married partner.  When she broke it off, accruing to Ms. Pao, she was retaliated against and passed over for a lucrative promotion.

When Ms. Pao’s allegations first came to light, Kleiner Perkins brought in an outside attorney to investigate, Stephen Hirschfield.  Mr. Hirschfield interviewed witnesses, reviewed available evidence, and concluded there was no discrimination against Ms. Pao.  It just came out in the trial, though, that during the investigation Mr. Hirschfield told Kleiner Perkins’ CFO that once the investigation was over, he would like to work for the company.  As a result, the integrity of the entire investigation is in question.

Lessons learned: If you investigate workplace concerns, you must be, and appear to be, a neutral with no skin in the game.  This should be an obvious point.  If Mr. Hirschfield was hoping for a job, he had a vested interest in finding for the employer in the investigation.  Surprise surprise, that is exactly what happened.  It may well be that Mr. Hirschfield did a stellar A++ investigation.  But his lack of neutrality, whether perceived or actual, really casts a large shadow of doubt over the entire investigation.



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Investigation don’t: do not promise to release your report

Back in January I blogged about a Minnesota Vikings investigation into allegations made by former player Chris Kluwe that he was let go based on his pro-gay marriage stance (here).  I commended the Vikings for responding swiftly to a blog post by starting an investigation.  Apparently, the Vikings promised to release the report to Kluwe.  They then decided not to release the report, and a settlement between Kluwe and the team has fallen apart.

What’s the lesson?  Don’t make promises you might not be able or willing to keep.  An investigator should never promise a complainant (or any other witness) that the report will be shared.  Quite the opposite – investigation reports are often maintained confidentially.

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Avoiding claims for assault and battery in the workplace

There has been an increase in state law claims for assault and battery in the workplace.  Employers should understand these claims and know how to best avoid them.  Civil assault is generally defined as an incident where a person shows an intent to harm another, and the “victim” believes that s/he will be hurt.  No actual physical contact is necessary for a civil assault claim.  Because of the fact-intensive nature of this claim, it is a hard one for an employer to win on summary judgment.  So too with civil claims for battery, which is generally defined as some kind of offensive touching of another person.  It is easy to imagine how this kind of claim could arise in the workplace.

What should HR do?  Be aware of these types of claims and be sensitive to situations that could implicate them.  For example, an employee complains she was afraid her manager was going to hit her.  Or she complains a manager actually touched her in a way she found offensive (picture a light jab to the shoulder).  If these situations arise, investigate them and take appropriate disciplinary action.  In other words, treat them the way you would a harassment or discrimination complaint.

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Is your workplace investigation protected by the attorney-client privilege? Are you sure?

In my practice as a workplace investigator, I am often brought in by an employer’s regular outside counsel.  The idea is that as a neutral third party, I bring an independence to the investigation that might not exist (or be perceived as existing) if the employer’s own lawyer were to conduct the investigation.  An added benefit of having outside counsel retain someone like me is that the investigation can be protected by the attorney-client privilege, meaning the employer does not have to disclose evidence relating to the investigation in later litigation.  The benefit of the attorney-client privilege can be paramount.  In cases where an investigation uncovers potential liability issues, for example, the employer can, with advice from its regular counsel, take the necessary steps to remediate the issue without worrying that its efforts will later be used against it in court.

That’s why the recent case of Koss v. Palmer Water Department should be on the radar of workplace investigators and the attorneys who retain them.  In Koss, the federal Massachusets court held that the employer waived the attorney-client privilege because its outside counsel was heavily involved in an investigation conducted by a third party attorney.  The facts warrant review.

Koss complained that she had been sexually harassed.  In response, the employer retained the services of an independent workplace investigator.  The employer’s regular outside counsel, who functioned in a sort of general counsel role for the employer, had significant input into the investigation, including communicating with the investigator during the investigation.  In Koss’s subsequent lawsuit for harassment, the employer relied on its investigation to support its claim that it did everything it could to address the situation.  When Koss sought access to the investigation documents, the employer claimed they were privileged.  Not so fast, held the court.

In ruling that the employer had to disclose the investigation materials to Koss, the court noted that regular counsel was “intimately connected to, if not controlling of, the investigation.”  Thus, the employer could not simultaneously rely on the investigation as part of its defense while trying to shield it under the attorney-client privilege.

What’s the takeaway for employers?  Before you commence a workplace investigation, be very clear on the contours of the privilege.  Do you want the investigation to be privileged?  If so, make sure outside counsel sits on the sidelines during the investigation process.  Such counsel should be very involved in providing legal advice after the fact, but their involvement with the investigator could prove fatal to a later claim of privilege.

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Workplace investigation alert: Don’t interrogate your employees

Yesterday’s New York Times had a fascinating article about employee confessions.  It focused on an internal investigation conducted by a workplace investigator at AutoZone, the car parts and accessories retailer.  The investigator approached then-employee Chris Polston and asked for help investigating a theft.  Mr. Polston said sure, he was happy to help.  He did not expect what happened next: the investigator kept him in an overstock room for over two hours, repeatedly accusing him of stealing auto parts and insisting he confess.  Mr. Polston denied having stolen anything, but the investigator would not be deterred.  He pointed to a DVD that he said contained definitive proof against Mr. Polston (this was a lie).  He told Mr. Polston he was not allowed to leave the room until he confessed, but that once he did, everything would be fine and he would keep his job.  Frustrated to the point of exhaustion, Mr. Polston finally fessed up to not paying for a candy bar and a soda.  This so-called confession was not even true.  He was just trying to say something that would stop the interrogation.  The next day, he was fired for allegedly stealing candy and soda.

Mr. Polston is now suing AutoZone and the investigator.  He’s not the first.  In the past few years, several lawsuits have been filed against AutoZone and other retail giants based on false confessions.  This type of interrogation has actually become somewhat commonplace in the retail world where concerns about theft abound.  From the perspective of a workplace investigator, this is a big fat DON’T.  I would think it would go without saying, but apparently not.  Mr. Polston’s case heads to a jury trial in Houston this summer.  I know how I’d lean if I were on his jury.

As workplace investigators, we are never trying to play “gotcha.”  We should treat all witnesses with respect and dignity.  The integrity of the investigation process demands at least this much.



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Workplace investigation update: the Miami Dolphins investigation report is in

The report commissioned by the NFL to look into allegations of bullying raised by former Dolphins teammate Jonathan Martin by offensive lineman Richie Incognito was completed last week.  (Click here to see the 144 page report)  It concluded that three offensive linemen (apt titles, yes?) engaged in a pattern of bullying and harassment towards Martin and two others.  The New York Times summed up the findings nicely: It determined, at bottom, that the harassment of Martin resembled “a classic case of bullying, where persons who are in a position of power harass the less powerful.”

There are many lessons to be learned from this case for workplace investigators, HR professionals, and employers.  Here are a few:

  • Bullying is a real thing with tangible consequences.  It’s been a “hot topic” for HR for some time now, and this case will certainly contribute to our national conversation on it.
  • Workplace culture is critical when it comes to defining an organization and its success, both perceived and actual.  Its importance cannot be overstated.  HR leaders and business owners should pay attention to it upfront, so as not to be caught unawares.  Dolphins owner Stephen Ross is probably wishing he had done so.
  • This investigation, headed by attorney Ted Wells at Paul, Weiss, shows us what “thorough” really means.  Wells and his team interviewed over 100 witnesses and reviewed countless emails and text messages.  No one can claim this was a rush job.
  • Notwithstanding the thoroughness of the investigation, its findings are not immune from dispute.  Incognito’s lawyer claims Wells got it all wrong.  This is common in investigations – the party against whom the findings are made disputes the findings.  What can a workplace investigator do?  Expect disagreement and dissatisfaction, and take comfort in the process.  Workplace investigators are not likely to win any popularity contests anytime soon.  That’s not why we do what we do.

It will be fascinating to see how the NFL responds.  It has indicated it will do so after reviewing the report, “as appropriate.”  The report’s recommendation is pretty simple:  “We encourage the creation of new workplace conduct rules and guidelines that will help ensure that players respect each other as professionals and people” (emphasis added).


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Workplace investigations: balancing “prompt” and “thorough”

If there are two buzzwords that capture what the courts are looking for in workplace investigations, they are prompt and thorough.  Prompt, meaning once an employer is on notice of the need to investigate, it should get the ball rolling quickly.  And thorough, meaning there should be a deliberate and objective process wherein both parties have the opportunity to present their evidence and/or defend themselves.  There are times where it can be difficult for an investigator to strike the right balance between these two principles.  While it’s generally fairly easy to start an investigation in a timely manner, finishing it in a timely manner can be a challenge.  This is especially so when there are many witnesses and documentary or other evidence for an investigator to sift through, not to mention other matters competing for his or her attention.  But investigators must do their best to be prompt in ending investigations, not just in starting them.

Miami Dolphins player Richie Incognito, currently the subject of an investigation into allegations of bullying and harassment, points out why in his recent tweet: “Paul, Weiss, Rifkind — Really taking your time on this one. Not like my career and life have been in the balance for 3 months.”  Paul Weiss is the law firm investigating the allegations and has indicated it will have its report done next week.  I’m confident the firm is doing its best to get its hands around the wide-reaching allegations.  After all, assessing an organizational culture takes time.  But Incognito’s tweet should serve as a reminder to all of us workplace investigators.  While we go about our days and investigate, people’s lives are on hold.

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Do you do workplace investigations? Think about AWI

I’ve blogged before about the Association of Workplace Investigators, an organization dedicated to enhancing the quality of, as the name suggests, workplace investigations.  I’m holding a Cleveland Local Circle meeting Monday February 10 at noon.  It’s a great way to network and share ideas, best practices, and war stories with others doing the same thing.  Interested?  Message me for details.

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Workplace investigations into allegations of bullying

Bullying is a hot topic these days.  Though it is not per se illegal, many employers have anti-bullying policies, in recognition of the significant toll bullying takes on the work environment.  Even in the absence of such a policy, employers are wise to investigate bullying claims, as they can often morph into viable legal claims.  (See my prior post about that here).  In addition to the traditional workplace, claims of bullying are on the rise in the world of sports (e.g., the Miami Dolphins ongoing investigation).

Rutgers University recently conducted an investigation into allegations of bullying made by a football player against an assistant coach.  The investigation did not substantiate the allegations, but from what I can tell from this article, the school did an outstanding job responding to and investigating the claims of bullying.  According to the Associated Press, a law firm was immediately retained to investigate.  The firm interviewed nearly forty witnesses and looked at numerous documents.  It then made detailed findings of fact, including on how the university responded to the allegations (that is, promptly and thoroughly).  Job well done.

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A workplace investigation guarantees a boost to your defense, right?

Not necessarily.  It depends on how good the investigation is.  Take the recent case of Castelluccio v. IBM, decided last month by a Connecticut federal court.  An employee who had just been separated complained of discrimination.  IBM’s internal HR representative conducted an investigation and found no evidence of discrimination.  In the subsequent lawsuit, the employee tried to keep the investigation out of evidence before the jury.  The court granted his request, finding fault with the investigation, thus mitigating its “probative value.”

What was wrong with the investigation?  The court criticized the fact that it was conducted internally, deeming it “one-sided.”  The employer would have done better to retain a neutral, outside investigator.  The court also took issue with the fact that once the employee signed a severance agreement, the investigation ceased.  This was further evidence that the investigation was really not intended to get to the bottom of the discrimination allegation.

Takeaways: consider using outside investigators where appropriate.  And make sure all workplace investigations are really intended to ascertain what happened – not merely to foreclose litigation.

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Workplace investigation no-no: not following up with relevant witnesses

The University of Connecticut is learning this one the hard way.  The Department of Education is investigating the university for alleged violations of Title IX.  According to some student complaints, campus police were charged with investigating instances of sexual assault and/or rape.  But they did not speak to all relevant witnesses, then closed the investigation without findings, citing a lack of information.  This kind of (alleged) haphazard investigation epitomizes what not to do when charged with investigating a serious complaint.

Incidentally, the Department of Education is taking a close look at how colleges and universities across the nation respond to this type of complaint.  For example, Emerson College is also facing a Department of Education investigation for mishandling complaints of sexual assault.

A couple of important takeaways for employers: Take complaints of harassment seriously, very seriously.  Investigate them throughly.  Make sure your selected investigators are capable and experienced.


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Another NFL investigation underway, and an important employer lesson

We workplace investigation geeks are following the Miami Dolphins investigation involving allegations of harassment made by former Dolphins tackle Jonathan Martin.  Now there’s another NFL investigation taking up time, money and press.  The Minnesota Vikings retained two lawyers to conduct an investigation into allegations, made via a blog post, by former punter Chris Kluwe.  Kluwe claimed he was dropped from the team based on his public stance in favor of gay marriage.  The blog posting was the first the team executives heard of the claim.  They responded quickly, retaining workplace investigators to review and assess the allegations.  The investigation is now underway.

Big Lesson: Social media and Investigations.  Employers beware.  No  matter how you learn of an employee or former employee complaint, be it via Facebook, twitter, or a random blog post, take it seriously.  Kudos to the Vikings for responding quickly and taking the claim seriously.


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Are you ready for some . . . .new workplace rules?

NFL Commissioner Roger Goodell indicated last week he plans to roll out some new workplace rules for NFL teams and players in 2014.  This as a direct result of the ongoing investigation into the Miami Dolphins bullying situation (that I blogged about here).  Attorney Ted Wells is in the midst of investigating Jon Martin’s claims of workplace bullying against Richard Incognito, as well as the team culture more generally.  A special report will be forthcoming sometime in early 2014 (but not before the Superbowl).  It will be interesting to see not only what the investigation reveals, but also what Goodell and the NFL take away from the Dolphins situation for the League more generally.


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Think a lax workplace investigation won’t get you in trouble? Think again

My dear friend and colleague Allison West is a seasoned workplace investigator.  That’s why she was retained as an expert witness in a case where the quality of the workplace investigation was an issue.  Yesterday she blogged about the result.  In a word, expensive.  With her permission (thanks Al!) I’m reprinting the post in its entirety here.  It’s a must read for employers, HR peeps, and anyone involved in workplace investigations.

$1M Arbitration Award for Shoddy Investigation

I am hoping the title of this post got your attention.  I was retained as an expert for the plaintiff in a case that alleged a poor investigation, breach of implied contract and defamation.  Last week the arbitrators awarded the plaintiff  $1M. Yep, one million bucks.

For over 15 years I have been an investigator and have spent considerable time over the years training HR and others how to conduct investigations.  Before that, I was a management side employment attorney.  I feel compelled to share some of the major mistakes made by the employer along with the HR Director who conducted the worst investigation I have ever read or heard about in my career.

Key facts:  Jim (the plaintiff) is accused of concealing facts regarding a co-workers fraudulent expense report. The real wrongdoer, Ed, (hey, I don’t have to be impartial) used Jim and his clients as part of his cover-up for his expensive dinner with his wife.  Jim consistently told his manager and others he was not at the dinner.  The matter is dropped. Months go by and then management starts digging around and does a further investigation into Ed the wrongdoer’s expense report. HR Investigator Mike is now brought in to do a more formal investigation. Let’s go over some of the highlights of the investigation:

1. Investigator Mike spent 7 minutes on the phone with Jim to ask about his version of the facts. (We know this from the phone records.) My position is I would have spent about 7 minutes introducing myself, going over admonitions and then getting into the questions. Oh, right, did I mention the HR Mike didn’t introduce himself? He felt Jim should remember him from when they met on Jim’s first day over a year before.  Oh, right, did I mention at the end of the call Jim asked, “who are you again?” Investigator Mike felt the question was a clear sign of deception.  Huh?

 Tip: I recommend that an investigator introduce himself or herself to the witness. Even if you know the witness, complainant or alleged wrongdoer, explain your current role as the Investigator.

During an investigation interview, many witnesses are nervous and it can be the first time they are learning of the nature of the investigation. In the situation involving the alleged wrongdoer, the interview is often the first time they learn they are the subject of the investigation. 

 Additionally, I am comfortable stating unequivocally that an investigator cannot interview an alleged wrongdoer in seven minutes. Nope, can’t be done.  In California and other states, investigations must be done in good faith. That means giving the alleged wrongdoer an opportunity to answer the allegations against him or her.  Moreover, the investigator must flesh out any inconsistencies, show documents or other evidence for review, dig deep to understand the alleged wrongdoer’s views and assess credibility.

 Finally, if you think the witness is deceptive – you must, yes, you must ask questions to further uncover information to support your conclusions. In other words, just having a “gut” feeling isn’t enough. Without more questions – shoddy investigation.

2.  Investigator Mike only makes cursory notes of the interviews he conducted.  The seven-minute interview was only one-half page of notes.

Tip: Take good notes! You may think you have a good memory. You don’t.  Can you take down every word like a court reporter – of course not. However, you must make an effort to make as accurate a record as possible of the interview responses. Do what you need to do to take better notes: get the witness to talk slower, occasionally read all or part of your notes to the witness to make sure you are as accurate as possible, stop the witness from speaking until you are done writing and make sure you can read your writing.

3.  One of Investigator Mike’s entries from his interview with Jim stated: “Admits he wasn’t at the dinner nor his clients. ‘You can put the rest together.’ Would not come out and say Ed & wife were at the dinner instead.”

Tip: What Investigator Mike wrote is just plain wrong. An investigators role is to ask questions, probe, probe some more and then ask more questions. The notes should have simply reflected what Jim said – not an interpretation of what the investigator thought the witness was saying. Any analysis as to the meaning of what a witness says takes place at the end of the investigation and is included in the verbal or written report. It would have been fine if Investigator Mike wrote, “witness refuses to directly answer if Ed and his wife were at dinner.”

I could go on and on about other egregious errors made by Investigator Mike, but the key teaching point is: conduct a good faith and unbiased investigation by giving the witnesses every opportunity to fairly and completely answer your questions. Do not put your own spin on the facts, do not “read between the lines” when you have no facts to back up your conclusions. Beware: Conduct an investigation like Investigator Mike and I guarantee I will write a blog post about it.


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Maintaining harmony in the midst of a workplace investigation

Workplace investigations are often, by their very nature, disruptive to business as usual.  An employee has likely lodged some kind of serious complaint.  Depending on the nature of the allegations and the person(s) against whom they are levied, an external investigator (such as myself) might have been retained.  This kind of scenario almost always sets off some kind of workplace grapevine.

How do you keep employees focused on the tasks at hand?  Here are my top 3 tips:

1.  Be very clear about what you can, and cannot, share with employees.  If they ask, you can tell them there is an ongoing investigation pursuant to company policy and that it is important to respect the process and the people involved.  Accordingly, they should simply focus on their jobs.

2.  Model the behavior you want to see.  Want employees to be their normal busy bees?  Do the same.  Don’t act as if the sky is falling or show stress or feelings of uncertainty that may result from the investigation.

3.  Be respectful of all employees – the complainant, the alleged wrongdoer, the witnesses, and the simply curious.  That is really the best way to keep the train on the tracks.

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My favorite legal theory, the “honest belief” rule

The “honest belief” rule is a great took for employers who do the right thing and investigate issues of alleged wrongdoing in the workplace.  It basically says that if an employer honestly and reasonably believes the reason for the action it takes (usually disciplinary in nature), then it won’t be held liable if said belief later turns out to be wrong.  This comes up in the context of workplace investigations most frequently.  For example, an employee complains of harassment.  The employer conducts a prompt, thorough and fair investigation and corroborates the allegations.  As a result, it terminates the alleged wrongdoer.  Alleged wrongdoer sues for wrongful termination and is able to prove s/he did not, in fact, harass anybody.  Applying the honest belief rule, a court will not find the employer liable for wrongful termination.  But, to avail itself of the rule, the employer had better have done its homework.

Another context the honest belief rule comes up is FMLA abuse by employees.  Take the recent case of Lineberry v. Detroit Medical Center (D. Mich. 2013).  An employee was on an authorized FMLA leave when the employer happened upon Facebook photos showing her having a grand time on a motorboat in Cancun.  (Co-worker “friends” of the employee complained about the posts to management).  The employer emailed the employee to ask about the vacation; she responded that she had to use a wheelchair much of the time while on vacation.  When she returned to work the employer investigated based on its suspicions of abuse.  The employee fessed up: she had indeed lied about using a wheelchair.  In response, the employer fired her and was then hit with an FMLA lawsuit.  The court found for the employer, holding it had an “honest belief” the employee was dishonest.

So how can an employer best avail itself of this defense?  Investigate, pure and simple.  Before taking disciplinary action, make sure you have a solid understanding of what happened.  And document the process and your analysis.



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Keeping up with the (workplace) culture

With apologies to the Kardashians, the unfolding situation with the Miami Dolphins is something employers should pay attention to.  It’s hard to say it better than my colleague Lorene Schaefer did in her Win-Win HR blog, where she elucidated a lesson about workplace complaints.  The situation is also a reminder for HR and business owners to keep a pulse on their often changing and dynamic workplace cultures.

A recap of the Dolphins situation: Last week offensive tackle Jonathan Martin abruptly left the team, claiming he’d been the victim of bullying.  The Dolphins initial response was largely one of denial.  Then, when more information about the alleged bullying came to light, the team invited the NFL to look into the matter and ended up suspending veteran player Richie Incognito “for conduct detrimental to the team.”  Incognito is alleged to have sent racially inflammatory text messages to Martin.  A spokesman stated “we believe in maintaining a culture of respect for one another and as a result we believe this decision is in the best interest of the organization at this time.”

It’s all well and good to espouse respect as a cultural value.  But it takes a lot of energy and resources to truly bring respect to the workplace.  It may well be that the Dolphins are on the right track.  If I were advising them, I would suggest they conduct a thorough and impartial investigation to get to the bottom of what transpired, and not just with respect to Martin.  Only with a handle on the facts can they take appropriate steps to effectuate real cultural change, if necessary.

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Workplace investigations: the best of the best

I just got back from L.A., where I attended (and spoke at) the Fourth Annual Conference of AWI (Association of Workplace Investigators).  The conference far exceeded my expectations.  Many of the speakers were tremendously experienced and talented.  They were also engaging and incredibly helpful.  I’d like to pass on a few of the nuggets I heard.  If you are in the business of conducting workplace investigations, I can’t speak highly enough about AWI.

One of the presentations focused on avoiding legal landmines.  It provided great tips on staying in control of the investigation, including dealing with difficult and uncooperative witnesses.  A witness who wants to record the interview, for example, should politely but firmly be told that’s not permissible.  So too with a witness who wants to see your notes (unless, of course, you want to share them).  But a witness who challenges your impartiality or demands a more neutral-seeming investigator?  Now that’s one to listen to.  It may be one of the few instances where letting the witness’ prerogative carry the day is the most prudent course of action.

workplace-investigations [Photo credit: Diversified Risk Management Inc.]

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UCLA failed to investigate numerous faculty claims of racial bias, report concludes

The L.A. Times reported over the weekend that a recently released internal report found that the University failed to investigate a number of claims of racial bias and, accordingly, failed to take appropriate remedial action against alleged offenders.  UCLA Chancellor Gene Block stated in a letter to all faculty and members of the administration that UCLA would change its practices and hire a full-time investigator to look into any such future claims.  He reiterated UCLA’s commitment to zero tolerance of discrimination of any kind and wrote “I sincerely regret any occasions in the past in which we have fallen short of our responsibility.”

Failing to investigate claims of discrimination (or other workplace wrongs) is exceedingly dangerous from a liability standpoint.  UCLA is now seeing the PR dangers inherent in such failures too.

Do yourself a favor, both in terms of compliance and positive PR and employee relations, and have a solid system in place to address any and all claims of discrimination.

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The Association of Workplace Investigators (AWI) Conference this week

I am super excited for the AWI Conference in Glendale this week.  For those of you who are not familiar, AWI is the only professional organization dedicated to workplace investigations in the country.  I’m honored to be speaking at the conference with my friend and colleague Allison West of Employment Practices Specialists.  Our topic is The High Cost of Getting Even: Understanding and Investigating Retaliation Claims.  Should be a great conference.

I’ll be sure to pass on some things I pick up from the conference.


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Retaliation primer: Is participation in an internal investigation “protected activity”?

Well, it depends if the question is about the law or your company policy.  Hopefully, with respect to the latter, the answer is a resounding “yes.”  Your policy should state something like “retaliation is strictly prohibited against employees who complain about harassment or discrimination or who participate in investigations into such claims.”  It may surprise you to know, though, under the law the answer is blurry.

The retaliation clause of Title VII contains two separate provisions for defining “protected activity,” one of the essential elements of any retaliation claims.  The participation clause, which protects employees who participate in government proceedings aimed at addressing workplace discrimination and the like (e.g., EEOC cases), and the opposition clause, which protects employees who oppose discriminatory workplace practices.

Courts all over the country have held that simply participating in an internal workplace investigation does not constitute “participation” within the meaning of the statute.  Opposition claims could, however, arise out of internal investigations, if witnesses make statements that could be construed as opposing discriminatory practices.

Why am I sharing this legal analysis with you? Primarily to remind you to look at your anti-retaliation policies.  You want them to be stated in a broader way than the law requires.  That way, a policy violations will not necessarily be tantamount to a legal violations.  But also simply for your edification.  Employment laws are complex animals, and trying to keep up with them is no easy feat.

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Investigation tip: how to respond when the complainant wants their lawyer present

By the time an employee makes an internal complaint, there is often the real possibility of legal liability (think harassment, discrimination, and the like).  Not surprisingly, then, said employee may have already retained a lawyer.  So what should you do if the employee says she wants her lawyer present when you interview her as part of the investigation?

My general approach is this: when I put on my “workplace investigator hat,” I am a neutral third party.  If it makes the employee more comfortable to speak to me with her (or his) lawyer present, no problem.  If she wants her grandma there, same thing.  (Keep in mind there are circumstances when this issue becomes more legal/ethical in nature and less up to the style of the investigator, such as when an attorney investigator is bound by professional rules of conduct, say in California.  For my purposes here, though, I’m looking through an HR best practices lens).  My job is to gather as much relevant information as I can, and then make findings of fact.  I never want to lose the cooperation of a complainant simply because she wants her counsel to sit in on the interview.

That being said, I think it makes sense to speak to the lawyer in advance and set some ground rules.  For example, remind the lawyer that your job is to gather information and assess credibility.  Accordingly, she (or he) should be a quiet observer, not a participant in the interview.



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A sanctions award in EEOC v. Spitzer, the “don’t have your lawyer investigate” case

Back in February I blogged about a recent case, EEOC et al. v. Spitzer, wherein the employer’s in-house counsel investigated internal complaints of discrimination and retaliation (see here for the prior post).  The takeaway was that it is a bad, bad idea to have your lawyer, in-house or otherwise, investigate workplace complaints of harassment, discrimination and the like.  The reason?  If your lawyer investigates and you later want to rely on the investigation as part of your defense, you will have essentially waived the attorney-client privilege.

Now, I bring to you an update of the case, which went to trial back in January.  After about a week of witness testimony, the court declared a mistrial, as it came to light that the employer had withheld lots of relevant evidence from the plaintiffs during the six years of pretrial proceedings.  Plaintiffs filed a motion for sanctions, which the court just granted, in large part, earlier today.  It awarded the plaintiffs over $300,000 in attorneys’ fees.  The fees are to be paid by the employer and its counsel, who was complicit in the failure to produce important documents.  This is a serious sanction.  Further, the case will be retried, and the court will likely make a lot of evidentiary calls and instructions to the new jury in the plaintiffs’ favor.  The court’s order is really a serious slap in the face to the employer and its lawyers.

One aspect of the order is particularly relevant for those of us who conduct workplace investigations.  An attorney who was assigned to investigate one of the plaintiff’s internal complaints (this is all pre-lawsuit) testified she took handwritten notes and then transcribed them.  Her typed notes were produced during the litigation, but her handwritten notes were not.  It was apparently her practice to hold onto the handwritten notes.  Thus, they should have been produced.  One of them was problematic for the employer.  In the handwritten version, the attorney/investigator wrote “BAD FOR US” with respect to some witness testimony.  Lo and behold this comment was missing from the typed notes.

What’s the problem?  Where do I begin.  First, the fact that the attorney/investigator considered herself part of “us,” meaning the employer, demonstrates a lack of impartiality – the linchpin of being a good investigator.  Second, her omission of this notation from the typed version of the notes suggests she knew this was not an appropriate remark to make.  Finally, as I tell every investigator I ever trained, one of the golden rules of investigation documentation is to avoid commentary, plain and simple.

I will be paying attention as this case works its way through the trial process once again.  Stay tuned for any relevant updates.

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AWI Cleveland Circle meets tomorrow

The Association of Workplace Investigators (AWI) is the leading national organization dedicated to enhancing the quality of workplace investigations.  I’ll be kicking off the Cleveland Circle tomorrow.  The group will serve as a resource for professionals involved in workplace investigations.  It’s going to be a lot of fun.  Want to know more?  Shoot me an email.


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Workplace Investigations: How NOT to select your investigator

When an employee complains about harassment, discrimination, or another workplace policy violation, one of the most important decisions you need to make is WHO will investigate the complaint.  This initial question can make all the difference if the investigation is later subject to scrutiny, in a court or otherwise.  So how should you make this selection?  Here are my top four DON’Ts:

1. Don’t choose someone who has a working or personal relationship with the complainant or the accused wrongdoer.

2.  Don’t choose someone with no experience or training in workplace investigations.  This is a specialized area requiring a high level of skill.

3.  Don’t choose someone who lacks communication skills, both verbal and written.  Your investigator should be able to converse effectively with the parties, witnesses, and perhaps even to serve as a witness him or herself

4.   Don’t choose someone the parties won’t trust.  It is critical that the investigator is viewed as a “neutral.”

Action step: make a checklist for yourself so that when the time comes to select an investigator, you are ready to go.  Remember, time is of the essence when it comes to responding to employee complaints!


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