Rights in a Workplace Investigation

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.


Coping with Change: Podcast with Deborah Moskovitch

Separation & Divorce: The ABC’s of helping your family cope with change

Sara Dimerman in conversation with Deborah Moskovitch

Click here to listen

Over the course of this seminar you will learn more about:

  • The normal range of mixed emotion you will experience after the separation.
  • The most common mistakes that parents unintentionally make with their children after the separation.
  • The most important factors to keep in mind in order for your children to be least affected by the changes to your family.
  • The best ways to respond to your children’s most common questions such as “will daddy ever come live with us again?” and “do you still love mommy?”
  • How to cope with the changes to your social life: what’s there to do when you’re feeling lonely on a Saturday night.
  • The domino effect: how to deal with friends and family who are feeling the impact of the changes too.
  • When, where and how to introduce your children to a new partner.
  • Resources and supports available to you.

Hide and Go Seek: Finding a Competent Workplace Investigator

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.


Caregivers – Get Thee to a Conference!

Caregiving for aging or ill friends and family has begun to receive the attention it deserves as a “field of study.”   However, caregivers are not “fields of study” and have needs that they often will  ignore their own needs or delay addressing them because they are overwhelmed with other tasks at hand and often feel unable to ask for help.  These delays can result in greater consequences, which is a shame.

If you are a caregiver or know a caregiver, assume that they could use help and make an offer.  The offer cannot be “call me if you need anything.”  The offer should be definite and come with a date/time:

1.  I’m bringing a casserole over Thursday for dinner.  It will be ready to eat or to freeze for later.

2.  I’m available Saturday and Sunday afternoons to run errands or stay with him/her so that you can have some time to yourself.   I know I don’t have to do it, but I’m coming anyway, even if it’s just for you and I to chat.

3.  I saw a caregiving conference that is coming up.  Here’s the flyer – if you attend, I’ll stay with him/her while you are there or will coordinate coverage while you are out.

Conferences are a great way for caregivers to get information that they need and to interact with other people who are facing some of the same emotional, financial, physical, medical and logistical issues.  If you are a caregiver – get to conferences, seminars, and other educational and support opportunities.  It is a great use of a caregiver’s valuable time.

If you are a friend to a caregiver, look for caregiver resources and provide them to your caregiving friend or family member.  Caregivers often do not have the time or energy to “help themselves” – and it is something you can do for them!   For example, upcoming and cheap Conferences  (2011 Family Caregivers Conference final (1)  and 2011 Annual Conference )  are coming up in the metro-Atlanta area.  Similar events occur throughout the nation.

Help a Caregiver Help Themselves!  Provide them with time to invest in themselves.

Managing Legal Risk vs. Avoiding A Trial

For corporations, it is common to hear phrases like “risk management” and “acceptable business risk.”   These phrases are often code phrases for internal decisions about how perfectly the business complies with all laws and how it has planned to deal with problems.

Internal audits provide some means to manage risk of non-compliance because the company is actively inspecting itself.   Insurance is another means to address claims – everything from injuries on the corporate premises (slip and fall cases), errors and omissions, and EPLI are just a few of the areas where corporations will seek coverage.  Of course, there then are the “required” insurance programs – workers compensation and unemployment compensation.

These techniques are helpful to managing legal risks, but beyond proactive litigation planning, they do not directly address litigation and – importantly – going to trial itself.   Many articles describe ways that businesses can attempt to avoid litigation and trials, and most include mediation and arbitration clauses as a tried and true means.  They must be on to something.

Studies have shown that mediation and arbitration clauses can reduce the costs of the “dispute,” by narrowing the scope of legal fees.  The rub for “proving” that mediation and arbitration are indeed more cost effective and faster than litigation is that it cannot be proven because the dispute will follow only one of the two paths.  Thus, no perfect comparison can be made.

However, the costs of trial can be estimated.  Often, business disputes involve two attorneys and one paralegal “per party” and at least one day of  trial that has involved at least one full day of preparation.  So, let’s do some math for a Acme v. XYZ, Co.’s trial (which excludes all of the litigation/discovery that occurred before the trial):

Four Attorneys X 8 Hours/Day = 32 Hours

Attorney’s Hourly Rate ($250) x Two Days = $500.00

So, just for the attorneys: $500 x 32 = $16,000.00

Paralegals often are billed at an hourly rate of $60-160.   ($60 x 16 hours x 2 Paralegals = $1,920)

Total:  $17,920 (truly, minimal here).


Now, contrast this minimal trial preparation and trial time costing both parties $17,920 with a “bill” for a full-day of mediation:  8 Hours of Mediation x $250/hour = $2,000.00.

And, that $2,000 is split between the parties.

The math is pretty persuasive for favoring the use of arbitration or mediation.  And, it can start with including a mediation clause in business contracts.  Contact One Mediation for sample language today!

Divorces (With Kids)

In divorce mediations, parents have an opportunity to discuss not only the legal aspects of their divorce, but also the non-legal issues.   What are non-legal issues in divorce?  Those items that a judge is not going to spend time on – Next Case!

Non-legal issues often involve communication.  Most parents want to provide a “united front” to their children, despite their separation.  However, there often is no time to discuss these matters.  Mediation is a time when many foreseeable issues can be addressed (and should be addressed).

These issues involve just about anything related to the rearing of children.

1.  What are you (both) going to tell the children about your mediation?  Your divorce?

2.  How do you want to handle introductions of intimate partners (and potential step-parents) to the children?

3.  How do you want to handle job losses or physical moves that will impact co-parenting time and/or child support?

4.  How do you want to enable your children to talk to his or her parents, together and perhaps without others around?

5.  How do you want to teach your children to drive?  How will you “look at colleges”?  How about weddings – will you be able to sit on the same row at your child’s wedding?

6.  How will you ensure that your children don’t “play” you against one another?

7.  How will you attempt to control what extended family and friends say to your children about your divorce?

8.  How will you handle children’s birthdays (parties and presents)?

9.  How will you help your child do something for “the other parent” on Mother’s/Father’s Day, birthday, or other “gifting occasion”?

10.  How will you talk to your children about the divorce and the impending changes?


None of these issues are court room material, but they are real issues for parents in the midst of divorce.  Use mediation as a place to address your divorce in a more comprehensive, practical, and authentic fashion for the sake of your children.



Employers – Increase Your Benefits!

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.

Re-Entering the Work Force (and Age Discrimination)

Are you new to the job search, but not a “new adult”?   With more and more Americans having the common experience of being a victim of a RIF, a lay-off, a hiring freeze, etc., more and more Americans are back on the prowl for a new job.  No new news here, right?

However, the ability to land that next position is complicated.  Many unemployed Americans are finding themselves in positions out of necessity, and these positions may be in an entirely new and unintended industry or “level.”

Even getting less than desirable positions is complicated.   Landing an interview with an employer that is actually going to fill “that position” means that preparation is paramount.

For those who haven’t interviewed in years (maybe even decades), knocking off the rust for making a solid presentation (of you) will take practice (in the mirror, with a friend, with the dog, etc.) and thinking well in advance of actually speaking.

What are you going to say?  And, if you are concerned about age discrimination, then you also need to be thinking of how you can avoid fanning the flames of negative stereotypes in an interview.  Yeah, yeah – you shouldn’t have to worry about it and ageism is illegal and it will take you years to get a favorable verdict and your bills are due before then.

So, how do you put your best foot forward in the meantime?

Prepare, Rehearse, Prepare, Rehearse.  And, take in the tips that are readily available (even though you think you know better…so do the 20 year-olds you are competing against for that lousy job).

Mom & Dad in that Big Ole House: Elder Mediation

Many families who schedule an elder mediation are delighted that they did at the end of the session.  The dread and denial of watching a parent age hurts a bit, and the realities of caring for aging individuals is not for the faint of heart.

A recent article in the LA Times hits on these points squarely and highlights why more families are choosing to hold a “family meeting” with a mediator who knows about senior resources, legal issues, and the financial and health related realities that the family is likely to face (and that they can plan for) so that they can put together a “Care Plan.”

At the end of the day, we all want to dictate how we are cared for, but too many wait until it is too late and potentially leave the burden to their families to “guess” what they would have wanted.  It’s a rough road, but one that can be smoothed over with an elder mediator to help.  Look for elder mediators and related elder mediation programs, like those at One Mediation in Atlanta, for more information.

Elder Mediation and The Future

A great little blurb on Elder Mediation’s benefits.  If you are a senior or facing a long-term illness, the “family meeting” model of elder mediation is a wonderful way to make challenging futures easier, respectful, and predictable.