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.



Divorce & Finances: How Do You Make This Work?

The costs of the divorce process can be as daunting as accounting for all of the financial matters, debts included, and month-to-month cash flow issues.  The bottom line is that being informed, prepared, and organized are critical.

As for getting organized and prepared, there are fantastic resources offered by the Institute of Certified Divorce Financial Analysts.

Another comprehensive resource, even though it is not based in the U.S., can be found here.

In addition to good legal counsel, look also for local divorce seminars and “divorce coaches” who can provide advice to you on therapists, children’s issues,  and financial professionals.  Getting good advice from professionals is priceless.

Attorney Too Smart for Her Own Good in Her Own Divorce?

Electronically stored information is a hot button issue in litigation.  It may be even hotter in divorce matters where evidence of infidelity often is found in emails, text messages, voice mail messages and more.  Obtaining these various forms of information is tricky business because of a variety of state and federal laws that govern unauthorized access to them.

A case in point came down in Tennessee in July 2012 where the wife, who also was an attorney, had installed certain “spyware” on multiple computers that her husband used.  When she found evidence of his infidelity, the gloves came off in the divorce proceedings where infidelity would make a significant difference to her share of the marital assets under a pre-nuptial agreement.  The bottom line:  the court was not impressed with her actions.

The old saying “Know Before You Go” is applicable in the world of electronics.  Know what is and is not legal when accessing electronically stored information by speaking with an experienced attorney.  And recognize the value of such information being disclosed in a divorce mediation prior to protracted litigation that ends up being the subject of multiple blogs.



Great Tips for Conducting Workplace Investigations

This British firm provides several key tips in conducting successful workplace investigations, including issues relating to he said/she said or credibility issues.

Divorce Seminars for Couples and Individuals (Metro-Atlanta)

Uncertain where to begin with separation or divorce?  Divorce for many people is a journey through uncharted territory.  Even hiring an attorney to help you can be an overwhelming experience.  It can be isolating, confusing, and stressful.

The amount of information on the internet about divorce is enormous, and sometimes the information conflict (the laws governing divorce differ from state to state).   Don’t surrender; get good information at seminars like these:

Below is a quick listing of some upcoming Atlanta Divorce seminars and more:

July 28, 2012 – Collaborative Divorce Seminar (Buckhead) – Co-Ed

August 18 & 25, 2012 – How to Mediate Your Divorce – (9 a.m. – Noon/Buckhead/$35) – Co-Ed

August 18 & 25, 2012Divorce Mediation & Arbitration Before You File – (12:30 – 1:30 p.m./Buckhead/$15) – Co-Ed

September 18, 2012Speeddivording: Fast Info from Pros – Early Bird Rate/Buckhead

August 4th & October 13, 2012Bankruptcy & Divorce: Which to File First? – Buckhead (call 404-720-0599)

October 26-28, 2012 – Divorce Survival School Weekend – (Overnight/Payment Plans Available) – Women Only

November 10, 2012 – Divorce 101 (Seminar for Men) 

Parenting Seminars (which satisfy certain court requirements) – Newnan/Carrollton AreaDouglas & Nearby CountiesCobb CountyFulton CountyDeKalb CountyGwinnett County.   Dates vary and are held frequently each month.  Usually $30 – Keep Your Certificate of Completion!

Divorce Consulting/Mediation Coaches.  These divorce mediators help individuals facing divorce get ready for mediation, answer questions about the process, prepare and prioritize for negotiations and working out solutions, and sort through ideas on “how to make it work” during the changes of separation and divorce:  JoAnne DonneAndy Flink, and Jennifer Keaton.

Local Certified Divorce Financial Analysts and Financial Neutrals.  These individuals help get your financial records in order, uploaded, and analyzed with an eye to division, taxes, budgets and more:  Lisa DeckerAnitha Rao.

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.

Is A Supervisor’s Comment to a Subordinate About Her “Boobs” Sexual Harassment?

Is A Supervisor’s Comment to a Subordinate About  Her “Boobs” Sexual Harassment?   A female police officer made several allegations of sexual harassment against her supervisor.  The employer responded with an investigation through its Human Resources department which was supported by legal counsel.  The report generated by the investigation eclipsed 1,000 pages.

Though the costs of the report has created media buzz, the workplace investigation concluded that the comment was inappropriate, but that the comment was not sufficiently severe to constitute sexual harassment.

Though the report is not currently published, it is likely that the employer’s policy against sexual harassment in the workplace did not include a “zero tolerance” provision.  Instead, the policy may have followed the standard (or definition) of “sexual harassment” under federal law that permits sexually charged conduct, generally speaking, so long as it is not offensive to the person to whom it is directed and it did not unreasonably interfere with the individual’s ability to work.

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:

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.

Small Business Solutions: Small Claims Arbitration Programs

Talk to an experienced business attorney about filing a lawsuit for a dispute that ranges in the $15,000-$30,000 range, and you may be surprised by the advice you get on whether to file:  Don’t Bother.

The rub with many lawsuits in this price range and even a little higher dollar value is that the costs and time associated with getting a favorable judgement on such a claim, even on a case that has little risk of loss, result in a wash.  What you spend in time, business disruption, and legal fees will meet or exceed the value of the case.  So, why bother.  Chock the dispute up to a business loss and a business expense.   

But is that the reality?  The only option?

In actuality, many small businesses are taking deliberate steps to include mandatory mediation and/or arbitration clauses into their business contracts.  Why?  Resolving disputes quickly (or faster than a court can or will) is important.  These clauses recognize that time is money.

One Mediation offers flat-rates for simple arbitrations, a feat that is a great answer to small-claims courts. For business disputes that have a potential damages value of $15,000 to $60,000, this flat rate arbitration model works well to get a decision – through binding-arbitration – that will help the parties move forward without both becoming mired needlessly (though there are instances where litigation is necessary) in a battle of wills, just as much as a battle of legal positions.  Contact One Mediation for more information about this flat-rate model for arbitration and to see if your matter(s) may qualify for this program.

Another model that smaller-business disputes can access is “Med-Arb,” a hybrid of the mediation and arbitration processes, to resolve matters quickly.  In this process, disputing parties first attempt to mediate the dispute, whereby they create their own solution and certainly avoid any impact to their credit that a public judgment might do.  If mediation fails, the dispute automatically moves into arbitration where a decision is guaranteed at the end of the day.  

Pro-active businesses can capture the benefits of alternative dispute resolution (ADR) processes – mediation, arbitration, and med-arb, among others – with a little planning and the simple inclusion of ADR clauses in their contracts or offering these processes as part of negotiations.  Contact One Mediation for more information on these processes at 404-720-0599.