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 .

Mediation at the EEOC: A Management Attorney’s Advice

Workplace disputes are complicated, whether they involve legal liability, typical politics, or what initially appears as an ongoing debate on who drank the last bit of coffee without putting on a new pot.  When the dispute involves matters of discrimination, harassment, and/or retaliation, the matter may involve the employee and the employer spending time with the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC is the federal agency charged with enforcing certain civil rights laws in the workplace.  Annually it publishes the number of charges it has received and the kinds of claims that were made.  Tens of thousands of charges are made each year.  As part of the processing of these charges and investigation of the claims, the EEOC has the opportunity to offer the employer and employee mediation in which it – the EEOC – will also be a party (albeit sometimes a silent party) to the mediation session.

Mediation is a time where the parties may be able to work out their differences, set things back on course, or otherwise resolve the dispute.  A recent article from a management-side attorney offer employers advice on whether to mediate through the EEOC’s process and the prospect of “settling.”  The article begs the question of whether mediation is a useful prospect if the employer (or perhaps any party) is not willing to do something, give up something, or say something as a fixed and unmovable position.

Mediation, however, sometimes is the place where information may be obtained early enough in the process to re-evaluate staunch positions…and make informed and wise decisions before further damage occurs or dollars, time, and resources are spent…on either side of the “v.”

Is Instructing an Employee Not to Discuss an Investigation a Violation of Title VII?

by Lorene F. Schaefer, Esq.

It seems that at least some offices of the EEOC may be adopting the position that employers are in violation of Title VII if they have policies that warn employees who participate in an internal investigation that they could be subject to discipline or discharge for discussing the investigation.  In a letter dated August 3, 2012, the Buffalo, NY office of the EEOC notified an employer that it was expanding its investigation into a discrimination charge and giving the employer an opportunity to respond. Here is the relevant excerpt from the letter:

“You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition.  It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination.  So, discussing one’s complaints of sexual harassment with others is protected opposition.  An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial.  In this case, telling the ___ women who complained of harassment that they were not to tell others about the alleged harassment is enough to constitute a harm under Title VII.  There does not have to be a separate adverse action.  In addition, your written policy is so broad that a reasonable employee could conclude from reading it that she could face discipline or charge for making inquiries to the EEOC about harassment if that harassment is being or has been investigated internally by your organization.”

Obviously, this letter from the Buffalo office is not law and the analysis stated therein may be limited to the Buffalo office and perhaps even to this specific charge.  This letter does, however, highlight some of the challenges and potential pitfalls for employers as they investigate claims of discrimination or harassment in today’s dynamic legal environment.

My understanding is that other offices of the EEOC may be taking similar positions.  I would be interested in hearing from readers who have experience with this issue in other offices of the EEOC.

Insights for Employers

Good employers recognize the importance of having compliance programs that ease the filing of employee complaints and provide for prompt, thorough and impartial investigations.  Employers who establish, disseminate and enforce anti-harassment policies and complaint procedures and conduct prompt, thorough and impartial investigations and take appropriate corrective action are afforded an affirmative defense to sexual harassment complaints.

In my blog last week, I suggested that, in light of the NLRB’s controversial decision in Banner Estralla Medical Center, the need for speed in a workplace misconduct investigation was increased.  If the EEOC intends to take the position that an employer’s confidentiality instruction to an employee during a harassment investigation is itself a violation of Title VII, then the need for a very prompt and well-planned investigation where employees are interviewed quickly (without an opportunity to coordinate their stories) becomes even more critical.

For those employers who conduct internal investigations in-house, ensuring that their investigators keep their skills up-to-date is also crucial. For employers who do not have professional staff with the experience, knowledge, and expertise to conduct legally defensible workplace investigations, I suggest they proactively identify an outside investigator who possesses these qualifications.  Workplace investigators are kind of akin to plumbers – you hope to never to need one, but when you do need one you need a good one and you need them fast.

Workplace Investigations In Caselaw

Think that workplace investigations aren’t that important?  Think Again!

Federal courts are taking close looks at how employers handle indications that harassment, retaliation and discrimination is occurring in the workplace.  These cases highlight the importance of prompt, effective, and impartial investigations into reports of misconduct in the workplace, particularly when the allegations involve discrimination or other civil rights claims.

Below is a listing of several federal cases that have been rendered that involve workplace investigations:

•  Bernstein v. City of Atlantic City, 2012 U.S. Dist. LEXIS 44849 (D. N.J. March 30, 2012)
•  Stewart v. Trans-Acc, Inc., 2011 U.S. Dist. LEXIS 44414 (S.D. Ohio, April 25, 2011)
•  Petril v. Cheyney Univ. of Penn., 789 F. Supp. 2d 574 (E.D. Penn. 2011)
•  Davis v. National Railroad Passenger Corp., 733 F. Supp.2d 474 (D. Del. 2010)
• EEOC v. Video Only,  2008 U.S. Dist. LEXIS 46094 (D.O. June 11, 2008).
• Bombaci  v. JCPG, Inc., No. 06-2222 (7th Cir. 2007).
• Bowles v. Osmose Utilities Services, No. 05-2069 (8th Cir. 2006).
• Taybron v. City of San Francisco, No. 02-15850 (9th Cir. 2003).
• Nazir v. United Airlines, et al. , 2009  No. A121651 (San Mateo CountySuper. Ct. No. CIV 458060)

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.

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:  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.

Fire Department Facing the Heat of the EEOC

A municipal fire department is facing an in-depth investigation by the EEOC following a flurry of complaints regarding discrimination in the ranks.  As individuals have been interviewed, news reports indicate that the allegations of discrimination certainly involve sex discrimination as a bias against the “three F’s” – meaning individuals who were fat, female or homosexual (an unfortunate slang term was used instead) – by top brass.

How can employers nip such problems in the bud and protect and promote a merit-based workforce?

• Ensure that employees receive ongoing training regarding workplace policies and laws are a means to reinforce EEO policies and to give them more than lip service.
• Take deliberate steps to train manager and leaders within the organization to utilize relevant and objective measures in how they conduct business, espouse the value of a diversity of ideas and experiences, and understand the policies that are in place and their relationship to applicable laws.  Here, where individual liability may exist, buy-in to the concept of fair workplace practices shouldn’t be that hard to obtain.
• Investigate, follow-up, review, etc. every concern that is raised.  When the “little stuff” is treated seriously, the “big stuff” is unlikely to come as any surprise (if at all).
• Where top leaders in a division or a department are involved, bring in an external workplace investigator, such as those at One Mediation, to bring a trained and unbiased set of eyes to the situation.  If there is a problem, it can be solved.  If there is not a problem, the situation can be explained.
• Train HR professionals, legal counsel, and risk managers to conduct effective follow-up and investigations of employee concerns, whether anonymous or otherwise, through training that is offered from a variety of vendors, including One Mediation (next course offered June 15, 2012).

How Many EEOC Charges Were Filed In Your State in 2011?

The Equal Employment Opportunity Commission, which falls under the U.S. Department of Labor, has recently published data that reflects state/territory data regarding Charges by category.  Make your guess, did California, Florida or Texas have the most Charges last year?

The data can be found here…or downloaded here.