It’s pretty self-explanatory.  So, without further ado, here’s the link on Slideshare®.

Tips for Successfully Mediating a Workplace Dispute

In that discussion, I found myself sketching out on a piece of paper a dispute resolution continuum.  My simple sketch got us through that conversation, but when I got back to my office I decided to “pretty it up” a bit and created the following chart.

Defining the Dispute Resolution Processes

Before I discuss the continuum, I think it’s important to define the common dispute resolution terms.

     Negotiation

In negotiation, two or more parties discuss directly their conflict and try to resolve it.  There are no third-parties involved.

     Mediation

In a mediation, the parties in conflict ask a third-party (the mediator) to try to help them resolve their conflict.  The mediator is a neutral and does not decide what is “fair” or “right.”  Rather, the mediator’s role is to moderate and guide the process in an attempt to bring the parties together by defining issues and eliminating obstacles to communication.  Although a mediator may point out to the parties potential strengths or weaknesses in their positions in an effort to help facilitate resolution, the decision making power remains always with the parties to the conflict.

     Arbitration

In an arbitration, the parties to the conflict have agreed that a third-party (the arbitrator) will hear the evidence presented by each of the parties and make a decision.  The arbitrator’s decision can either be binding on the parties or non-binding depending on the terms of the parties’ arbitration agreement.

     Litigation

Litigation is the term used to describe the filing of a lawsuit in court and the process that follows the filing of the lawsuit.  Most commonly in litigation involving workplace disputes, issues of law are decided by a judge and issues of fact are decided by a jury.

The Continuum of Dispute Resolution

In looking at the dispute resolution continuum several things become clear.

     Parties Retain Control on Left and Cede Control on the Right

The first thing that jumps out at you in looking at the continuum is that as you move from the left to the right the parties increasingly cede control for decision making to a third-party.   Now many readers may think — well that’s not so bad.  Sometimes you just can’t resolve a workplace dispute and it’s better – easier – to just hand the issue to a third-party and let them decide.  Maybe.

When I discuss the potential of having a jury decide a dispute with parties in a mediation, I often ask them whether they agree with who gets voted on and off of “American Idol” each week.  I know I don’t.  Those same voters are members of the jury pool.  If you are the person involved in a workplace dispute query whether you want to make the decision of how to resolve the issue or whether you are comfortable turning it over to the “American Idol” voters.

     The Likelihood of a Win-Lose Answer Increases as You Move to the Right 

As you move to right on the continuum, the parties also increase the likelihood that one of them will be a loser and one of them will be a winner.  Notice the missed opportunity for a win-win resolution.

     Monetary and Non-Monetary Costs Increase as You Move to the Right

Costs of lawsuits include not only the legal fees that each of the parties will pay their attorneys, but also fees associated with court filings, depositions and expert witnesses.  For the employee, there is also the reality of foregoing a regular paycheck if he or she is not working.

There are also the non-monetary costs.

            Non-Monetary – Employers

For employers, there is the productivity drain that an on-going workplace dispute causes.  Research shows that simple incivility or bad behavior in the workplace (much less the distraction caused by a pending lawsuit) has a significant cost.  According to research by Professors Christine Pearson and Christine Porath reported in their book THE COST OF BAD BEHAVIOR:  How Incivility Is Damaging Your Business and What To Do About It, among workers who’ve been on the receiving end of incivility:

• 48% intentionally decreased their work effort
• 47% intentionally decreased the time spent at work
• 38% intentionally decreased the quality of their work
• 80% lost work time worrying about the incident
• 63%   lost work time avoiding the offender
• 66% said that their performance declined
• 78% said that their commitment to the organization declined
• 12% said that they left their job because of the uncivil treatment
• 25% admitted to taking their frustration out on customers

           Non-Monetary – Employees

For the employee, there is the personal distress.  As Atlanta plaintiff’s attorney Steve Mixon explains, “employees cannot start their real healing until the lawsuit is over.  While the lawsuit is pending, employees are forced to essentially re-live what happened every time they have to answer their attorney’s questions, respond to discovery or give testimony.”

     The Workplace Dispute Becomes More Public as You Move to the Right

One of the biggest benefits to employees and employers who can successfully resolve their dispute in either negotiation or mediation is that they can agree to keep the resolution – and perhaps even the dispute – confidential.  In a workplace dispute, this can be particularly beneficial to both the employee and the employer.  Depending on the terms of the arbitration agreement, it is also possible to have an arbitration and the arbitration decision kept confidential.

By contrast, litigation is public.  I think it is particularly important for parties to a workplace dispute to understand this point as it is increasingly easy for any interested party to go on-line and read all of the various documents that make up a lawsuit.  As such, investors or potential buyers of a company will often, as a part of their due diligence, read court pleadings to get a feel for the corporate culture.  Similarly, potential employers might read court filings as a part of their reference checking.

Insights for Employees and Employers

Control your own conflict.  Sit down and talk to each other face-to-face and see if you can negotiate a resolution.  If you can’t do it on your own, retain an experienced mediator who knows the applicable laws and can work with you to find a win-win resolution.

Do not turn your dispute over to a jury.

Remember, juries are comprised of the same folks who vote for our “American Idol” each week.

To learn more about mediating a workplace dispute and how to prepare for a mediation, click here.   

A recent video on monkey behavior (and, perhaps, human psychology?) is certainly telling. Briefly, two monkeys are given the same job, but are rewarded differently.  The slighted monkey receives watery cucumbers rather than juicy grapes like his co-worker-monkey does for the same work.  The reaction of the slighted monkey is priceless!

Click here to watch the video.

Equal Pay is the Law of the Land

While I still chuckle every time I view this video, it is somewhat sobering that the fundamental unfairness of unequal pay for equal work still rears its ugly head today in the “human workplace.”  Even women lawyers aren’t immune from the ugliness as the American Bar Association – Commission on Women reports that in 2011 the average woman lawyers’ weekly salary as a percentage of male lawyers’ salary was 86.6%.

Equal pay for equal work has been the law since 1963, which was a pivotal legislative year for civil rights in the workplace.  Not only was Title VII of the Civil Right Act passed that guaranteed equal employment opportunity regardless of race and other classifications, but the Equal Pay Act also was passed.

Under the Equal Pay Act (“EPA”), covered employers are prohibited from paying differing wages, based upon the sex of the employee, for equal work on jobs requiring equal skill, effort, and responsibility, and which are performed under similar working conditions. Today, this act seems almost redundant of Title VII, but in 1963 it was clearly necessary.  Then, policies that men were paid more than women for the same work were rampant, justified with the logic that men were responsible for being the breadwinner to their families.

Social Media Makes It Easier to Protest Unequal Pay

The bottom line is that fundamental unfairness is just as obvious, palpable, and odious to monkeys as it was and continues to be today to humans.

In the brave new world of the Internet and social media whether an employer is ever held accountable legally for permitting such double standards is not the end of the risk analysis.  As I’ve written about in the past, in today’s world what was yesterday’s griping around the water cooler is today’s tweet heard around the world.

A quick look at the comments on Glassdoor® provides a good example of this new reality.

Employer A Glassdoor® comment: 

“Equal pay for equal work.”

Pros – Good career opportunities. Good benefits and fair wages.

Cons – Incompetent management and good old boy attitude. No room for advancement as a female.

Advice to Senior Management – Have a more positive outlook for promoting women.

Employer B Glassdoor® comment:

 “Discrimination and Untrustworthy”

Pros – When things are slow and going right, it’s a laid back atmosphere.

Most customers are beer brewers, they are cool to work with.

You can (for now) listen to your MP3 player while working.

It pays the bills if your desperate for a job.

Cons – There is ongoing sexual harassment and gender discrimination that management will not address.

Salaries have been based off of gender and parental status, this was stated by upper management.

Bonuses are offered in job offer to get you to sign on, but bonuses never pay out even if company makes money.

A member of upper management has extremely poor communication skills and a very bad temper, has put holes in the walls in anger at work. It’s a small company, you will work with him.

Customers have been told they don’t matter as long as the company makes a profit.

People who have worked here for years or have any skill are leaving left and right.

Advice to Senior Management – Unfortunately any advice would fall on deaf ears, the managers will do what they want, when they want, and how they want with no regards to other employees. All that matters to the company is how much money they make.

Insights for Employers

All that to say, if a monkey is smart enough to recognize disparate treatment, employers should be more keenly aware that monitoring compensation for legal compliance is important not only to avoid lawsuits or government investigations but also to maintain good morale and to retain great employees.  Employers who fail to do so should not be surprised when their employees decide to throw back their watery cucumbers and act on their frustration through complaints to the government, to the public on social media, through unionization activity or by filing a lawsuit.

This change is due, in part, to two United States Supreme Court rulings in 1998 that held that employers can avoid liability for sexual harassment that does not involve an adverse employment action (e.g., termination or demotion) if the employer can demonstrate:  (1) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of the employer’s preventive or corrective measures.  This principle often is referred to as the “Faragher/Ellerth affirmative defense,” in reference to the two 1998 United States Supreme Court decisions in which the Court established the defense.

Courts have applied the Faragher/Ellerth affirmative defense to other types of harassment and discrimination cases.  Accordingly, in many instances, an employer’s liability will turn on how it handles a complaint.

In addition to providing the basis for an affirmative defense to a potential claim of harassment or discrimination, having an internal investigation conducted by a professional workplace investigator who is also an attorney will give management the tools to understand what has taken place and to decide upon appropriate courses of action, such as whether to discipline those responsible, whether to waive or retain the attorney-client privilege with respect to the matters investigated, how to conduct interviews of management and employees as well as whom to interview, how to treat whistleblowers and cooperating witnesses, how to document the investigation, and how to implement measures to prevent recurrence.

It also seems that juries (and other regulatory officials) are beginning to expect higher quality investigations by employers.  The larger the employer the greater the expectation seems to be.  Click here to read about one jury’s expectations of an employer faced with a claim of sexual harassment.  Attorneys who regularly represent employees report that one of the key factors they consider in deciding whether to take a case is the quality of the employer’s internal investigation into the underlying matter.

Traditionally, an employer’s regular counsel would often conduct these fact-finding workplace investigations when they could not be handled effectively in-house by human resources.  Increasingly, employers and their regular counsel have modified this approach and are retaining neutral and independent workplace investigators.  For a more detailed discussion about the risks and issues created when an employer uses its regular legal counsel to conduct a fact-finding investigation, click here.

Why Use Separate Counsel as a  Professional Workplace Investigator vs. the Employer’s Regular Counsel?

Employers and their regular counsel who decide to retain a separate attorney to conduct a fact-finding workplace investigation get the benefit of having an attorney conduct the investigation but avoid potential problems such as:

1. the employer’s regular attorney being deemed a witness;
2. the conflicting roles of advocacy vs. impartiality;
3. actual or perceived objectivity of the investigation due to pre-existing relationships between the employer and its regular counsel; and
4. the risk of the attorney-client privilege being inadvertently waived by combining fact-finding and advisor roles.

Why Use a Professional Workplace Investigator Instead of Human Resources?

Even larger employers who have the benefit of having HR professionals in-house may sometimes decide to retain an external professional workplace investigator.  For example, I’m sure in hindsight that Chrysler wishes it had retained an external professional workplace investigator to investigate allegations of anonymous workplace harassment.  It didn’t and the result was a $3.5 million verdict that you can read about here.

Reasons employers and their counsel may decide to use an external professional workplace investigator even if they have in-house HR professionals for this include:

1. HR’s workload may be such that the investigation cannot be a priority; 
2. HR may lack the subject matter expertise and experience to handle the issue;
3. HR may have a real or perceived conflict of interest; and
4. HR may not possess the requisite communication skills necessary should the dispute proceed to jury trial.

Will Your Investigation Withstand Scrutiny at Trial?

Should a workplace dispute proceed to trial, it is also becoming more common for plaintiffs’ attorneys and defense attorneys to present the testimony of management practices experts.  Such testimony often focuses on the quality of the employer’s investigation of the plaintiff’s underlying complaint.  Here is an example of this type of Expert Witness Report from a case pending in the United Stated District Court for the Northern District of Mississippi.

Employment counsel charged with defending the employment action being challenged will be best positioned to do so where they can call as a witness the professional and expert workplace investigator the employer used to conduct the investigation.  Click here for tips on how to select an effective workplace investigator.

Recommendation for Employers 

In light of these dynamic changes, employers are encouraged to work proactively with their regular employment counsel to review their approach to investigations.  As a part of that review, I encourage employers to identify professional workplace investigators to use should the need arise.  Having a fully vetted workplace investigator in your Rolodex is just good business sense in today’s environment.  As one of my colleagues is fond of saying, “workplace Investigators are kind of like plumbers.  You hope never to need one, but when you do, you need a good one and you need them fast.”

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

Tradition has it that the host each month picks a theme and says something (hopefully) witty and inspiring enough to get you to click on that person’s blog entry.  So, without further ado — I bring you the HR Spring Cleaning edition of the Employment Blawg Carnival.

The tulips are blooming, the robins are serenading, and our workplaces still feel stuck in the winter blues.  It’s time to engage in that time-honored tradition – Spring-Cleaning!

Refresh Your HR Training During Spring Cleaning

Spring-cleaning is a tradition that allows us to freshen up our homes and get a head start on the hectic seasons of spring and summer.  Check out this post from Jennifer Keaton at One Mediation to see What Duck Dynasty Can Teach You About HR Training and get some fresh ideas for HR training.

Dust Off Your Employment Contracts for These Lessons Learned

For those of you who use employment contracts, when is the last time you updated them?  Now’s the time – find them, dust them off and update them!

As you’re reading them, John Homquist’s blog “Termination – Rutgers Style” is a good reminder of why it’s important to pay careful attention to what would constitute a “for cause” termination.

Canadian lawyer Stuart Rudner must have been channeling this Spring Cleaning blawg when he wrote “How Dusty Are Your Employment Contracts?”

Would bringing Trayvon Martin-looking shooting targets constitute “for cause” under your employment contracts?  Yes, this is a real situation from a real case as reported here by Philip Miles.

Review Your HR Policies and Codes of Conduct

There are some special chores that, while somewhat painful, need to be done seasonally. Bite the bullet now and do an annual review of your HR polices to ensure they are up to date with changes in the law and still reflect your current corporate culture and operating practices.  Here are seven blogs discussing HR Policy issues:

• Check out my blog from last week – “Internal Investigations:  New Guidance from NLRB” - to see if your company’s Code of Conduct is in compliance with the NLRB’s recent advice on confidentiality in workplace investigations.

• Review Jon Hyman’s “Deploy the Girl Scout Cookie Offensive to Ward Off Labor Unions” for a good reminder of why it’s so important to uniformly enforce non-solicitation policies in the workplace – even if what’s being sold is seemingly harmless Girl Scout cookies!

• What do you think about including smokers in your company’s list of protected categories of employees?  Read Michael Haberman’s “Should Smokers Be a Protected Category?” for his thoughts.

• Do your policies prohibit distributing religious materials at work? Should they?  Consider Crystal Spraggin’s musings about the “New Jersey Teacher Fired for Giving a Student a Bible.”

• As you’re doing your spring cleaning annual review of your employee handbook, you’ll do well to keep in mind Mitchell Quick’s “3 Basic Rules for Employee Handbooks.”  

• As you review your company’s sexual harassment policy, you may want to review Ari Rosenstein’s short and sweet summary of three of the key lawsuits that govern sexual harassment claims.  

• Finally – Social Media.  As Heather Bussing explains in her excellent post “Social Media’s Real Legal Issues” there are any number of legal/liability and legal/practical issues created when an employer wants to issue a social media policy.   Employers  will want to ensure that they have done more than just issue a social medial policy; they need to train their employees on how to recognize the issues, understand them and handle them professionally.  If your company doesn’t yet have a social media policy, now is the time to consider implementing one as Daniel Schwartz explains in “Why Employers Need a Policy More Than Ever.”

Update Your Settlement/Severance Agreement Checklists

For those of you negotiating severance agreements, make sure your checklists are up to date by reviewing:

(1) Donna Ballman’s thoughts on how to negotiate a better severance agreement in this interview: “Stand Up For Yourself Without Getting Fired” and

(2) Robert Fitzpatrick’s guidance about how to address payment of FICA in severance agreements.

A Spring-Cleaning Suggestion for the NRLB

And … finally, a respectful spring-cleaning suggestion by Todd Sarver to President Obama.  Todd urges President Obama to consider appointing neutral arbitrators to the NLRB vs. the current practice of appointing practicing management or union attorneys.    “Has the NLRB ‘Jumped the Shark?’”

Happy cleaning!

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

As a result, employers were encouraged to review and modify, where appropriate, all internal investigation policies, procedures and forms to determine whether there are nondiscretionary requirements that employees always be instructed to maintain confidentiality of workplace investigations. You can read more about the July 2012 NLRB decision here.

On April 16, 2013, the NLRB released an Advice Memorandum that provides additional clarification on its position on confidentiality in workplace investigations.  Obviously, an Advice Memorandum does not have the same precedential value as a NLRB decision.

Blanket rule on confidentiality viewed as “overly broad”

NLRB Advice Memoranda are helpful nonetheless as employers who follow the guidance provided in them can generally avoid prosecution by the NLRB.  As such, it’s helpful to review the guidance, especially since in this instance the NLRB has provided specific approved language for employer policies on confidentiality in internal workplace investigations.

First, let’s look at the language in the employer’s existing Code of Conduct that the NLRB found objectionable:

“[Employer] has a compelling interest in protecting the integrity of its investigations.  In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.  To assist [Employer] in achieving these objectives, we must maintain the investigation and our role in it in strict confidence.  If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

The NLRB found the employer’s blanket rule on confidentiality in internal investigations overly broad and in violation of Section 7 of the NLRA.  The good news for employers is that the NLRB didn’t just stop there.  It went on to offer suggested alternative language that would be in compliance with Section 7 of the NLRA.  Specifically, the NLRB suggested that the last two sentences of the above be revised as follows:

“[Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence.  If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

Insight for Employers

Confidentiality continues to be a critical aspect of the vast majority of internal workplace investigations.  It is critical for any number of reasons, including the reasons identified in the above policy:  protecting witnesses from harassment, intimidation and retaliation, keeping evidence from being destroyed, ensuring that testimony is not fabricated, and preventing cover-ups.

As such, it is imperative that employers be able to lawfully enforce their confidentiality policies and practices when the need arises.

From a pragmatic perspective, employers will also want to avoid the productivity drain caused by a NLRB inquiry.  To meet these goals, employers are encouraged to review their existing policies and practices and modify the language, as appropriate, to mirror the NLRB’s suggested language.

Employers may also wish to implement a practice of documenting, on a case-by-case basis, the reasons for deciding to instruct witnesses to keep an investigation confidential.

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

September 2008 Letter to CEO Reporting Fraud

In 2008, Paul Blakeslee worked for Shaw Environment and Infrastructure, a full-service contractor for environmental and infrastructure projects worldwide. Blakeslee was managing over 40 employees working on a $100+ million contract to maintain facilities at Fort Richardson and Fort Wainwright in Alaska.  When Blakeslee learned that Shaw’s Alaska project manager owned one-third of another private company that was leasing about $2 million in equipment to Shaw, often without competitive bidding, he decided to write a letter to Shaw’s CEO reporting what he believed to be fraud.

According to the lawsuit, Blakeslee said the project manager found out about the planned letter Blakeslee was writing to the company’s CEO and threatened to lay him off.  That exchange happened on a Friday and the following Monday, the company terminated him, telling him they were eliminating his position to save money.

A week or so after the project manager threatened to terminate, Blakeslee sent the planned letter to the CEO.  According to the letter, Blakeslee decided to write the letter after he received a company email  “encouraging any employee to report any illegal or adverse practices existing in the organization.”  Here is an excerpt from an affidavit Blakeslee filed in the subsequent lawsuit providing further background on why he wrote the letter:

“I wrote my letter dated September 19, 2008 because when I learned that Mr. Lantz owned American Leasing, I immediately believed that his ownership was illegal and a conflict of interest. I formed this opinion in August 2008 after the purchasing agent Ron Babbs told me that Lantz owned the company. I started working on my letter in August and I sent it on September 19 after editing and revising the letter over several weeks.”

Blakeslee’s letter was stamped “Received” in the CEO’s office on September 23, 2008. A copy of the letter is attached here.

On the morning of October 6, 2008, Blakeslee was told his position had been eliminated and he was asked to pack his personal items and leave that day.

October 2009 Lawsuit & March 2013 $3.5 Million Jury Verdit

Shaw investigated the concerns raised in Blakeslee’s letter and ultimately terminated the project manager was terminated.  Despite this seeming validation of Blakeslee’s concerns, however, Shaw refused to reinstate Blakeslee.   Blakeslee sued in October 2009 alleging age discrimination, retaliation and wrongful termination.  Click here to read a copy of the Shaw Complaint

Shaw retained counsel and defended aggressively for 4+ years.   The case finally went to trial in March 2013.  After a 12-day trial, the federal jury in Alaska found in favor of Blakeslee concluding that Shaw’s firing of Blakeslee was illegal retaliation for his reporting of the wrongdoing.  The jury awarded Blakeslee $445,574 in lost wages and $486,458 in non-economic damages for his emotional distress. After listening to oral arguments from the attorneys on both sides, the jury also awarded Blakeslee $2.5 million in punitive damages.

In arguing for an award of punitive damages, Blakeslee’s lawyer, Matt Singer, told the jury it was time to hold the company accountable. “You get to stand up to the powerful. You get to stand up, not just for Mr. Blakeslee, but for everybody and say this kind of conduct is not acceptable,” Singer said.

Not surprisingly, Shaw’s attorneys argued against an award of damages telling the jury that the company should not be held liable for the behavior of a “couple bad apples.”   They argued, “Shaw is a company that has tried to do the right thing” and “does not need to be sent a big message, ‘You need to go out and change your ways.’”

Shaw will inevitably file post-verdict motions and an appeal.

In an interview with the Anchorage Daily News, Blakeslee recognized that it is unlikely he will receive any money from the award for many years but that vindication was what was most important to him:

“I probably won’t get it all, but I’ve got four kids. And I’m 76 and my wife is 81. There’s not enough time left for me to spend it,” Blakeslee said. “Charity, my kids, you know. I’m not interested in money, I was just interested in vindication.” “I wouldn’t have cared if I got a dollar. It wouldn’t have made any difference to me.”

 Lessons for Employers

Implementing an employee hotline or other mechanism for employees to use to report concerns in the workplace is only the first step in an effective compliance program.  As important, if not more important, is implementing a process to ensure that complaints are promptly, thoroughly and impartially investigated.  Click here to read why one plaintiff’s attorney says her first line of inquiry in evaluating a prospective client’s case is to review the employer’s investigation.

In addition to conducting a prompt, thorough and impartial investigation, it is also critical that employers take all necessary steps to ensure that the employee who has made the complaint is not retaliated against.  As this case demonstrates, prudent employers should ensure that any adverse employment actions against an employee who has made a complaint are carefully reviewed to ensure such adverse action is being taken for legitimate, non-discriminatory, non-retaliatory reasons.  Prudent employers also understand that where they decide after this review to go forward with the adverse employment action that they will need to be prepared to withstand third-party scrutiny.

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

I am honored to have been invited to be one of the panelists at the meeting.  You can click here to see a full list of the other panelists.  I and the other panelists were invited to participate in the meeting as a part of the EEOC’s ongoing efforts to ensure the views of agency staff  and external stakeholders are incorporated into the development process.  The meeting promises to be a fascinating discussion as both sides of the employment bar are well represented as are the various offices of the EEOC.

I submitted my written statement earlier today.  Please click here to read it.

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Internal-Investigations.com

Before I set forth some best practices for assessing witness credibility, I think it’s also helpful to revisit the “honest belief” defense.  Under the “honest belief” defense, if an employer can demonstrate that it had an honestly believed, nondiscriminatory reason for taking the employment action being challenged, an employee cannot establish that the offered reason is pretextual simply because the employee may be able to prove subsequently that the employer was wrong in its honest belief.   I don’t review the “honest belief” defense here as some type of “get out of jail free” card for employers but rather as a reminder of the standard of review that courts will use in reviewing an employer’s decision that is later alleged to be discriminatory.

So, how does an investigator assess witness credibility?  There is a lot of discussion in the literature on this topic, but one of the most pragmatic approaches I’ve suggested over the years is to turn to the pattern jury instructions in the relevant jurisdiction on witness credibility and use them as a guide.  Why?  It goes back to anticipating the “honest belief” defense discussed above.  The investigator is not charged with making factual findings beyond a reasonable doubt or that are 100% accurate, but rather making factual findings based on a well-done and thorough investigation.  The employer will then take or not take an employment action based on its “honest belief” of the facts as established by the investigation.  Utilizing the relevant jurisdiction’s standard jury instructions provides an easily available and defensible checklist should the investigator/employer later have to defend the process used to assess credibility.

Generally, an investigator will be able to locate the applicable pattern jury instructions with a simple “Google” search.  By way of example, I’ve set forth below the Eleventh Circuit Federal Court Pattern Jury Instructions for Criminal Cases (2010).   The Eleventh Circuit includes Georgia, Florida and Alabama.

Credibility of Witnesses

When I say you must consider all the evidence, I don’t mean that you must accept all the evidence as true or accurate.  You should decide whether you believe what each witness had to say, and how important that testimony was.  In making that decision you may believe or disbelieve any witness, in whole or in part.  The number of witnesses testifying concerning a particular point doesn’t necessarily matter.

To decide whether you believe any witness I suggest that you ask yourself a few questions:

• Did the witness impress you as one who was telling the truth?

• Did the witness have any particular reason not to tell the truth?

• Did the witness have a personal interest in the outcome of the case?

• Did the witness seem to have a good memory?

• Did the witness have the opportunity and ability to accurately observe the things he or she testified about?

• Did the witness appear to understand the questions clearly and answer them directly?

• Did the witness’s testimony differ from other testimony or other evidence?

Source:  http://www.ca11.uscourts.gov/documents/jury/crimjury.pdf

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

Making a conscious choice of the appropriate response to conflict in the workplace enables you to engage in “good” workplace conflict – the kind that generates creative solutions and increased productivity vs. crippling disputes and wasted time and energy.  Today’s blog is about understanding our hot buttons and in a later blog I’ll talk about the five basic responses to conflict and why it’s important to consciously choose the appropriate response.

Now, back to hot buttons.  Everyone has different hot buttons in the workplace.  According to Professor Stella Ting-Toomey, there are six core sources of conflict triggers  – hot buttons if you will:

• Competence – you’re triggered when you perceive that someone is questioning your intelligence or skills.
• Inclusion – you’re triggered when someone appears to be excluding you in some way (from a group, an event, a committee, etc.).
• Autonomy – you’re triggered when someone appears to be trying to control you, imposing on you, or threatening your self-reliance.
• Status – you’re triggered when you perceive that someone is threatening or dissing your tangible and intangible assets, including power, position, economic worth, and attractiveness.
• Reliability – you’re triggered when you perceive that someone is questioning your trustworthiness or dependability.
• Morality – you’re triggered when someone appears to be questioning your moral values or integrity.

Learn your own conflict triggers in the workplace. Understand what pushes your buttons – what makes you feel like you want to spit nails. This is the first step in  managing the inevitable conflict in the workplace in a more constructive and productive manner.

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com