6 Tips to Increase Employee Trust of Internal Investigations



The most recent study of the nonprofit Ethics Resource Center concluded that an investigation process viewed as procedurally fair “substantially increases the chances that reporting employees will accept the [company’s] outcome.”

Earlier this week, I wrote a post about the research and also spoke with Sue Reisinger at Corporate Counsel about the implications of the research, suggesting that it is time for companies

  • to rethink how they handle internal compliance complaints; and
  • develop protocols and training curriculums that help translate the precepts of procedural fairness into daily practice.

Tips for Employers

Here are a few communication strategies and practical “how to” recommendations companies can use to increase the likelihood employees will first use internal reporting tools and that the reporting party will accept the results of the company’s internal investigation and refrain from raising the concern to third-parties on social media or to the government or adversarial counsel:

  • Humanize the reporting experience: Selection of the person(s) who will receive complaints is critical as appearing approachable and accessible is a key component of procedural fairness. Share the bio and picture of the person who will receive compliance reports with company employees.  Tell your employees why they can trust this person to receive their complaints and concerns.  Ensure that employees can make reports in their native language.
  • Explain what you’re doing and why: For many employees, making a compliance report can be a traumatic event. The jargon and procedures can be confusing and intimidating and many will fear retaliation.   Use simple terms to explain the process and reassure reporting employees that retaliation is prohibited for raising a concern in good faith.
  • Manage expectations.  If an investigation is warranted, explain how the investigator will be selected and the anticipated timing of the investigation.  Establish a process to “check-in” periodically with the reporting employee.
  • Carefully select a well-trained and neutral investigator.  Research shows whether the reporter trusted the investigator was critical to whether the reporter perceived the investigation as procedurally fair.   When communicating with the complaining employee, the accused employee and witnesses, the investigator needs to make eye contact and use body language that conveys respect.
  • Close the loop with the reporting employee, accused and any witnesses interviewed.   Even in situations where confidentiality concerns preclude the ability to share the results of the investigation, closing the loop with everyone who participated in the process is critical.  Closing the loop, gives the opportunity for the company to assure the participants that the company works hard to apply its compliance policies in a consistent manner.  One strategy for doing this where confidentiality precludes sharing the actual results any corrective action or the results of the investigation is for the company to provide an overview of the company’s neutral, fact-based, and unbiased decision-making process.
  • “Market” your reporting and compliance programs.  Develop a communication plan and consider periodically sharing high level and appropriately sanitized summaries of compliance investigations and/or the types of numbers of reports being received and resolved.  Where appropriate, thank the reporting employee and the employees who participated in the investigation.”


Win-Win Resolve, Solving Work ConflictWin-Win Resolve helps employers save time and money and strengthen compliance programs.  We manage employee hotlines and internal dispute resolution programs and conduct workplace investigations and mediations.  Learn more Win-Win Resolve.



Whistleblowers and Procedural Fairness: Why Employers Should Care

Win-Win Resolve, solving work conflictThe United States Supreme Court’s March 4, 2014 decision in Lawson v. FMR LLC not only expanded the whistle-blower coverage under the Sarbanes-Oxley Act of 2012 (“SOX”), it also stoked fears that a new wave of SOX whistle-blower litigation testing the scope and meaning of SOX is imminent.   In Lawson, the Supreme Court held by a 6-3 margin that the SOX anti-retaliation provision applies not only to employees of publicly traded companies, but also to employees of non-public companies that provide work for public companies.  Until the Lawson decision, employers generally operated under the belief that SOX applied only to employees of publicly traded companies.

In addition to the expanded SOX whistle-blower coverage following the Lawson decision, U.S. employers also face ever expanding whistleblower related exposure under federal and state laws.  Those federal statutes include the Dodd-Frank Act, OSHA, the Fair Labor Standards Act, and the Family and Medical Leave Act.  There are also numerous state and local civil rights, discrimination and/or public safety whistleblower laws.   In this evolving area of law, federal and state governments are also making it easier and easier for employees to make whistleblower claims via national and state hotlines.  They are also wooing employees with promises of large rewards to employees who report alleged fraud or other wrongdoing.

The good news for employers is that research shows that despite these new developments, employees prefer to resolve their concerns internally.  Research by the nonprofit Ethics Resource Center found that 84% of whistleblowers that reported a compliance concern outside their company first reported the concern internally.   It was only after the employer failed to address the concern satisfactorily that the employee reported the concern to a third-party outside the company.   Click here to read research.

Procedural Fairness Key to Whether Employees Becomes Whistleblower

A 2013 study by the Ethics Resource Center examined the hotline reporting experience of 612 employees at five companies.   Perhaps the most significant finding of the study was that “the primary factor influencing the degree of acceptance was whether or not the reporters felt the procedure used to handle their report was fair.”  In looking at this finding more closely, the researchers found that “reporters indicated that the quality of decision-making was slightly more important to acceptance than the quality of the personal treatment they received, but that positive perceptions of both of those elements contributed to acceptance.”

Notably, the study also evaluated how reporting employees react when their report is not substantiated or when the reporting employees do not know the outcome of the investigation.  In both instances, the reporting employees’ perception that the review process was procedurally fair was a “critical influence in shaping acceptance and outweighs outcome favorability.”  That finding is significant in the context of internal workplace investigations where confidentiality concerns often preclude an organization from sharing any disciplinary decisions that may have resulted from the concerns or complaints made by the reporting employee.

In the study, the reporting employees were asked questions intended to test the reporter’s perception of the fairness of the procedures used in the process, the fairness of the personal treatment of the reporter and the reporter’s overall view of the fairness of the report handling procedure.  In order to evaluate the impact of the investigation procedures used, the researches used a regression analysis to determine the influence a favorable outcome had on the reporter’s perception of procedural fairness.  Not surprisingly, reporters who viewed the outcome of the investigation as favorable were more likely to accept the outcome.  What was surprising though was that whether or not the investigator substantiated a reporter’s complaint had little impact on reporter perceptions of the process.  Click to read full report.

Four Keys to Procedural Fairness

These findings are consistent with more general social psychology research into the concept of procedural fairness.  According to research by Tom R. Tyler, professor of law and psychology at Yale Law School, there are four key aspects to whether a person will accept a decision making process as procedurally fair:

  • Voice – People want to have the chance to tell their side of a story and in their own words to the decision maker;
  • Neutrality – People want to feel that the decision maker is making the decision based on facts and rules and not the decision maker’s own personal opinions.  They also want to feel that the rules are applied consistently across people and cases;
  • Respect – People want to feel that their concerns are taken seriously by the decision maker and that they treated with respect when they raise their concerns;
  • Trust – People want to feel like the decision maker is listening to them and consider their views.  They want to feel like the decision maker is trying to do what is right for everyone involved and that the decision maker is acting in the interests of the parties and not in the decision maker’s self-interest.

Tips for Employers

In today’s world of social media, where a disgruntled employee can with a few key stroke share his or her complaints with the world, prudent employers are working hard to give their employees a clear way to report workplace concerns like fraud, harassment, discrimination and retaliation internally.  They are implementing investigation protocols that ensure allegations of workplace misconduct are investigated promptly, thoroughly and impartially.  They understand that a strong internal investigation protocol is a critical step in encouraging employees to keep concerns internal rather than allowing employees to feel their only alternative is to take to social media or to contact one of the government’s fraud hotlines or an adversarial attorney.

In light of the above research surrounding procedural fairness, prudent employers are also providing their risk managers, management teams and HR professionals with training on how to ensure and effectively present procedural fairness to reporting employees.  As we all know, perception is reality and increasing the perception of procedural fairness further increases the likelihood that a reporting employee will accept the outcome of an internal workplace investigation and refrain from posting on social media or contacting a third-party like the government or adversarial counsel.


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Large corporations and organizations have long known the benefits of IDR programs. Now, with the turn-key Win-Win Resolve™ program, even smaller and mid-sized employers can more easily see benefits similar to those experienced by the General Electric Company, which in a three-year period saw employment litigation costs fall from $6 million to under $1.2 million per year and perhaps as importantly achieved this result without incurring the onslaught of frivolous claims that some had feared. The Department of Energy (“DOE”) and the U.S. Postal Service saw similar results withe the DOE saving $1.3 million by mediating workplace disputes and the U.S. Postal Service experiencing a 40 percent decline in the number of employees who filed a new EEO complaint after it implemented an internal mediation program.  Click here to learn more:  www.WinWinResolve.com

Workplace Investigations: Tips & Templates for Preserving the Privilege

Win-Win HR, Attorney-Client PrivilegedAlthough the attorney-client privilege is firmly established as a legal doctrine that protects confidential communications between lawyers and their clients, a recent federal court decision stands as a stark reminder that its application is not absolute. In United States ex rel. Barko v. Halliburton Company et al., the court ordered a Halliburton subsidiary to produce documents related to an internal investigation of an alleged Code of Business Conduct violation.  The court found that these documents were not protected under the attorney-client privilege or the work product doctrine because the investigation was “a routine corporate . . . compliance investigation required by regulatory law and corporate policy” and the “investigations would have been conducted regardless of whether legal advice were sought.”  To read a more in-depth analysis of the Halliburton opinion, click here or here.  

The determination of whether the attorney-client privilege and work product doctrines apply in any given case is fact dependent and there is no one “magic bullet” or guaranteed safe haven.  With that said, there are a number steps a company can take to maximize the likelihood that a court will deem an internal investigation protected from disclosure by the attorney-client privilege or attorney work product doctrine.

Tips & Templates for Companies to Preserve the Attorney-Client Privilege

  • Do not put compliance on auto-pilot.  Evaluate each allegation of misconduct on a case-by-case basis and determine which allegations will be investigated and by whom.
  • Involve the company attorney (either in-house or outside counsel) early when allegations of workplace misconduct are made.
  • Formally document that an internal workplace investigation is being initiated to gather facts necessary for the company’s attorney to give the company legal advice.
  • Document any threat of litigation.
  • If a non-attorney is going to assist in the investigation, the company attorney should give the non-attorney an Upjohn letter formally documenting that the non-attorney is working at the direction of legal counsel to gather facts necessary for the attorney to give the company legal advice.  Upjohn warnings are named after Upjohn v. United States, 449 U.S. 383 (1981), the case in which the Supreme Court made clear that the corporate attorney-client privilege applied to a much wider group of Constituents than the corporation’s “control group.”  Click here for an Upjohn template.
  • Give all witnesses Upjohn warnings.  Advise all individuals who are interviewed that the investigation is confidential and being done at direction of legal counsel in order to gather facts necessary for the company attorney to provide legal advice.  Even better, document these witness instructions and consider having each witness sign an acknowledgement.  Click here for a template for this type of instruction.
  • Mark all documents created during the course of the investigation as attorney-client privileged and attorney work product.
  • Maintain the investigation files in a confidential manner.
  • Do not discuss the investigation except with those with a legitimate need to know.


workplace investigations groupTraining designed to cross train in-house counsel and to enhance the skills of Risk Management and HR professionals for conducting investigations into alleged workplace misconduct such as discrimination, harassment, bullying and retaliation. Training is truly hands-on with mock witness interviews, report writing, and more conducted in a small class setting.  Next class is April 21st.

For more information or to register, click here. 

GitHub Employee Takes to Social Media After Internal Complaint of Harassment and Sexism Not Addressed Satisfactorily

Win-Win Resolve, Solving Work ConflictEighty-four percent of employees who report a compliance concern outside their company first reported the concern internally.  It was only after the employer failed to address the concern satisfactorily that the employee reported the concern to a third-party outside the company.

In today’s world of social media, dissatisfied employees no longer need an attorney or journalist to tell their story.  With the few strokes of a keyboard they can broadcast their complaints around the world.

The recent use of social media by a former GitHub employee to complain about alleged harassment and sexism is an example of this brave new world.   Here’s an example of a few of her Twitter posts.  Note how her complaints are quickly being amplified by people retweeting and favoriting her posts.

Win-Win Resolve

Win-Win ResolveWin-Win ResolveYou can read more about the GitHub case by clicking here.

Lessons for Employers

The GitHub case serves as a good reminder to employers of the importance of evaluating their current processes and procedures for responding to internal employee complaints.  Recent research concludes that employees who believe their internal concerns were taken seriously and that the process used to investigate their concerns was procedurally fair are statistically more likely to accept the employer’s response – even if the employee disagreed with the response.

Savvy employers recognize this and work hard to give their employees a clear way to report workplace concerns.  They implement investigation protocols that ensure allegations of workplace misconduct are investigated promptly, thoroughly and impartially.  They understand that a strong internal investigation protocol is a critical step in encouraging employees to keep concerns internal rather than allowing employees to feel their only alternative is to take to social media or to contact adversarial legal counsel, union organizers, or a governmental agency.


Win-Win Resolve, Solving Work ConflictWin-Win Resolve helps employers save time and money and strengthen compliance programs.  We manage employee hotlines and internal dispute resolution programs and conduct workplace investigations and mediations.  Learn more Win-Win Resolve.





Miami Dolphins Investigation Good Example of Well-Done Internal Workplace Investigation

Miami Dolphins Employee ComplaintsAs I’ve written about before, the plaintiff’s bar is growing increasingly sophisticated in its strategic efforts to attack employers’ internal workplace investigations.  Unfortunately, too many employers have made themselves vulnerable to these attacks by failing to ensure that their internal workplace investigations are conducted by an impartial investigator or failing to ensure the investigation process is impartial.

The internal workplace investigation commissioned by the Miami Dolphins is an exception.  When confronted with allegations of harassment and bullying by player Jonathan Martin, the Miami Dolphins leadership promptly retained an outside attorney to conduct an independent internal workplace investigation.  According to the report issued by the investigation attorney, the Miami Dolphins also refrained from trying to influence the investigator and did not review or edit the investigation report.

Set forth below is the section of the report that describes the scope and independence of the investigation.  Congratulations to the Miami Dolphins leadership team for responding promptly, thoroughly and impartially to the allegations of harassment and bullying.   The full 144-page investigation report can be read by clicking here.  It is an excellent example of a well-done, prompt, thorough and impartial internal workplace investigation.

B. The Scope and Independence of the Investigation

On November 6, 2013, Commissioner Goodell announced that he had retained Theodore V. Wells, Jr. and this law firm, Paul, Weiss, Rifkind, Wharton & Garrison LLP, to conduct the independent investigation. The NFL’s press release states that our mandate was to “direct an independent investigation into issues of workplace conduct at the Miami Dolphins and prepare a report for the commissioner, which would be made public.”

Neither the NFL nor the Dolphins imposed any constraints on the investigation. Paul, Weiss received the full cooperation of the league, the Dolphins organization (including current and former players, coaches, front-office staff and other personnel) and the NFLPA. We had authority to request interviews of anyone deemed to have relevant information, including present and former NFL players, coaches, staff and personnel. We were given access to pertinent documents from the NFL and the Dolphins. Our investigation took place independently from any concurrent inquiries undertaken by the NFLPA, the Dolphins or individual players and their attorneys.

Quoted from page 52 of investigation report.

Workplace Investigations – Dealing with the Aftermath (Part 2)

Win-Win HR Workplace InvestigationIn the first in the two-part post, Washington attorney Amy Stephson discussed the negative impact an investigation can have on a work group.  She also addressed the “low hanging fruit,” i.e., the basic post-investigation actions that need to be taken.

In this post, she describes a “normalization” process that can be used to address the significant stresses that result when all parties to an investigation remain in the workplace.

Workplace Investigations – Dealing with the Aftermath (Part 2)

by Amy Stephson, Esq., Author of the Workplace Insiders Blog and Member of Workplace Investigations Group

Typically, the “normalization” process following an internal workplace investigation is led by someone with coaching, mediation, and facilitation skills.  It can be an internal person, if he or she is not part of the workgroup and was not involved in the investigation. Often it is better to bring in someone from the outside.

The process has several steps.  First, the coach/mediator needs to get a basic background: the allegations, the type and extent of the investigation that took place, and the findings.  Though helpful, it is not necessary for the mediator to read the investigative report and often this does not occur.

Second, the coach/mediator should interview the parties.  Questions include what happened, how have the parties’ interactions been going, and what would enable the party to move past the investigation.  The coach/mediator should get each party’s agreement to a facilitated meeting and determine if they have any concerns or preferences for the meeting.  It is important that the coach/mediator develop a rapport with each of the parties – and to understand where each is coming from – as a prelude to the meeting.

The next step is preparation of a meeting agenda.  Each one is unique to the situation at hand, but has certain common components, including discussions of (1) the role of the facilitator; (2) common goals that all of the parties share; (3) how the parties want to interact with each other in the future; and (4) what the employer wants and needs from them.  It is a good idea to send the agenda to the parties in advance for their review and comments.  The coach/mediator also needs to prepare a “Ground Rules” document to guide the participants’ interactions during the meeting.

The meeting itself should be in a comfortable, private space.  The table should be such that no one has positional authority or precedence.  (Yes, these are not that different from international peace talks.)  The participants may or may not fully stick to the agenda, but the facilitator’s job is to ensure that the essential matters get discussed in a concrete manner and resolved to at least some degree, even if it’s only to meet again to continue the discussion.  The facilitator also needs to ensure that the uncomfortable topics get out on the table, e.g., retaliation or performance concerns.

When the meeting is over, someone needs to write down what was decided.  Typically this is the facilitator and the notes should be sent to all participants for their corrections, additions, and changes, if any.  If a second meeting is contemplated, the facilitator will want to try to ensure this actually happens.

What happens when all the notices have been sent and the meetings have occurred?  Management should continue to check in with the parties from time to time to see how things are going and take appropriate action as needed.  And hold its breath.

Love Contracts at Work

He Said She Said BirdsWith Valentine’s Day only a week away, I thought I’d repost my discussion of “love contracts.”

A “love contract” or in lawyer terms – a Consensual Relationship Agreement —   is an effort to mitigate the risk of sexual harassment claims from an office romance gone awry by documenting that the relationship is consensual.

For the reasons I’ll discuss below, I’m not sure that having two employees sign this type of agreement really mitigates the risk of a sexual harassment claim from one of the employees involved in the relationship all that much, but so we’re all on the same page before I share my thoughts, here is an example of a Consensual Relationship Agreement:

Consensual Relationship Agreement

We, the undersigned employees, have voluntarily entered a social relationship.

We acknowledge that [Employer] is committed to providing a workplace that is free of harassment, discrimination, conflicts of interest, and favouritism, and that [Employer] will not tolerate unwelcome or offensive conduct, conduct that creates a hostile work environment, or sexual harassment. We have read and understand [Employer’s] anti-discrimination and anti-harassment policies.

We understand and agree as follows:

The social relationship is welcome and consensual by both employees.

Either employee may terminate the relationship at any time without suffering workplace retaliation of any form.

If applicable: Neither employee will seek or accept a direct supervisory or reporting relationship with the other.

If applicable: [Employee in supervisory position] will not participate in any discussions or decisions related to the terms of [subordinate employee’s] employment, including those related to assignments, evaluations, discipline or discharge, compensation, scheduling, promotion or demotion, and development.

The employees will not engage in conduct that could reasonably be regarded by co-workers as favouritism.

The employees will behave professionally toward each other at all times, even if the social relationship ends.

The employees will not engage in public displays of affection or other inappropriate conduct in the workplace or at work-related functions.

The social relationship does not violate [Employer’s] anti-discrimination and anti-harassment policies, and participation in the social relationship has not been made a condition or term of employment.

The employees will continue to comply with [Employer’s] antidiscrimination and anti-harassment policies.

The employees will inform [Employer] immediately if the social relationship ends or if the conduct of the other employee is no longer welcome.

If applicable: Any dispute arising from the social relationship or this agreement will be resolved through arbitration.

This agreement is confidential and intended not to invade employees’ privacy but to affirm that both employees have received and agree to comply with all relevant policies.

The employees may consult with an attorney before signing this agreement.

Signed [2 x consenting employees]

Insights for Employers

Over the course of my twenty-three year legal career, I have provided legal advice and counsel in well over two hundred claims of sexual harassment.  In none of those situations did the sexual harassment claim arise out of an office romance where the two employees involved had previously disclosed the romance to the employer.   To the contrary, the majority of the situations involving a relationship gone awry arose out of an extramarital workplace relationship, which for obvious reasons the employees wished to keep secret.

My experience would seem to be validated by CareerBuilder’s annual office romance survey.  According to the survey, dating a co-worker is a fairly common occurrence, with 39 percent of workers saying they have dated a co-worker at least once during their career. Of those reporting they had dated a co-worker, 35 percent said they kept their romance a secret.

Of course, my experience and the results of the survey begs the question:  If 35 percent of the employees who have an office romance are keeping it secret and the majority (or 100% in my experience) of sexual harassment claims arise out of those secret romances, is there a benefit to having employees sign a Consensual Relationship Agreement.  There may well be organizational benefits to having employees sign an agreement, but it is not a panacea of lawsuit prevention.  For example, having a practice of asking employees sign such an agreement may give employees and employers a more comfortable avenue for raising all of the issues surrounding appropriate workplace interactions, i.e. should you hold hands in the lunch room or kiss in the hallway.

Bottom line:  Employers would be better served in focusing their efforts on creating a culture of compliance and respect in the workplace vs. having employees engaged in an open office romance sign Consensual Relationship Agreements.  Unfortunately, human behavior dictates that there will always be employees engaged in secret office relationships.  Those employees are unlikely to self-report their secrets and change their behavior because the employer has a practice of having employees sign Consensual Relationship Agreements.  In fact, having such a practice might have the opposite result with those employees going further underground in their secret relationship – until, of course, it sours and one or both of the employees files a claim of harassment or hostile work environment.

Happy Valentines Day!


Workplace Investigations — Dealing with the Aftermath (Part 1)

Win-Win HR Workplace InvestigationRegardless of how well an internal workplace investigation is handled, it is not unusual for the effects of the investigation to linger in the workplace.  Rumors abound.  Feelings are hurt.  Productivity suffers.

Amy Stephson is an attorney in Seattle, Washington who regularly conducts not only impartial workplace investigations into allegations of misconduct, but also assists employers with post-investigation efforts to “normalize” the workplace.  Amy is also a member of the Workplace Investigations Group, the only directory to provide a nationwide listing exclusively comprised of attorneys who also serve as workplace investigators.

In this first of a two-part guest post, Amy shares her insights and suggestions for proactively dealing with the aftermath of a workplace investigation.

Workplace Investigations — Dealing with the Aftermath

by Amy Stephson, Esq.

Investigations are a necessary and often beneficial part of the modern workplace.  However, they can also be disruptive and leave bad feelings that may linger for a long time.  After seeing the negative effects of investigations for more than 15 years, I have come up with a few ideas on how to reduce and potentially eliminate those effects.

First, it is important to understand the impact an investigation can have on the employees involved in it – regardless of whether the complaint was found to be meritorious or not.

  • The complainant fears retaliation, ostracism, or just plain being disliked.  He or she may be upset or angry if the investigation did not substantiate the complaint or the response to the complaint is seen as inadequate in some other way.
  • The respondent may feel embarrassed, betrayed, or unjustly accused by the complainant.  He or she may also fear being disliked or ostracized. If the respondent is the complainant’s supervisor or manager, he or she will have concerns about how to manage the complainant’s performance and behaviors without bringing on charges of retaliation.
  • The witnesses also fear they may be retaliated against or disliked.  They may feel guilty for informing on a colleague or for not disclosing key information.  They may be angry at having to take sides or just at the workplace drama in general.

So what can be done to address all this?  First, there’s some low hanging fruit:

  • Inform the parties of the outcome. Certain decisions may be confidential, e.g., discipline, but it’s important to inform the complainant(s), those accused, and relevant managers/supervisors of the outcome of the investigation. Sounds obvious, but surprisingly often it doesn’t happen.
  • Inform the witnesses the investigation is completed. Thank them for their cooperation, remind them it’s confidential, renew assurances of no retaliation, and urge them to come forward if additional incidents occur. Don’t just leave them hanging.
  • Take the recommended steps. If discipline is warranted, do it. Investiga­tions may highlight the need for training, coaching, conflict resolution and the like. If such actions are needed, do them. Strike while the iron is hot.

More difficult is how to address the continuing and future interactions of the key parties: the complainant, respondent, and possibly their manager.  You can be sure that they feel acutely uncomfortable and tense around each other and wonder if things will ever be “normal” again.

Left to their own devices, they may figure out how to comfortably interact again, but it will take a long time.  And they may never figure it out.  In such cases, it is not uncommon for one or both of the parties to leave their jobs and possibly sue.

In this situation, it is well-worth the time and resources to employ a “normalization” process to help the parties’ relationship get back on track.

Lorene’s note:  In Part 2 of Amy’s post, she’ll share her suggestions for employing a “normalization” process to help get your workplace back on track.

Jury Awards $1.5M+ Against IBM in Age Discrimination Case After Faulty Internal Investigation Precluded from Evidence

Cash BagA federal jury in Connecticut returned a unanimous verdict awarding a total of $1,499,891.70 to a man terminated by IBM when he was 61 years old.  The jury also found that IBM “knew or showed reckless disregard for whether its termination of [the employee] constituted age discrimination.”   As such, the employee may also be entitled to liquidated damages, which is double back pay, and would add another $999,891.70 to the total award.

Unless this verdict is reversed on appeal, IBM will also be ordered to pay the employee’s attorney’s fees.  Given that the case has been pending since July 2009 and took eight days to try, those fees are likely to be substantial.

Plaintiff Scored Key Pre-Trial Ruling When Investigation Deemed One-Sided

According to the pleadings in the case, when the 61-year-old employee learned he was going to be terminated he complained to IBM management that he was being discriminated against because of his age.  An IBM human resources manager then conducted an investigation into that complaint and found that the employee was treated fairly and not discriminated against.

In the weeks leading up to the start of the jury trial, the employee’s attorney filed a motion to preclude the introduction of the internal HR investigation at trial arguing that the probative value of the internal investigation was far outweighed by its prejudicial effect and that its introduction to the jury will result in confusion and delay.  IBM opposed the motion arguing, in relevant part, that the investigation was clearly relevant to IBM’s motive, admissible as a business record, and that IBM needed the investigation to be able to defend itself against allegations that its actions were “willful.”

In a key legal boost to the employee’s case, the federal judge granted the motion to preclude.  The judge was particularly troubled by what he viewed as an investigation that “while purporting to make objective findings” failed to consider evidence that would have been favorable to the employee.   Indeed, the judge noted that he suspected that “the purpose of the investigation was more to exonerate IBM than to determine if [the employee] was treated fairly.”

Connecticut plaintiff’s attorney Nina Pirrotti was not surprised by the judge’s ruling and is not surprised by the jury verdict.   Indeed, she commented that even if the judge had declined to grant the motion to preclude, “the plaintiff’s employment lawyer could have made hay over IBM’s ‘non-investigation’ which was clearly orchestrated to justify IBM’s unlawful termination decision.”   In fact, she noted that “if a jury concludes that the employer conducted a true sham investigation, such a finding may be the tipping point in its decision to award punitive (or in this case liquidated) damages. “

Would Your Investigation Withstand Scrutiny?

As this case demonstrates, the promptness, thoroughness and impartiality of an employer’s internal workplace investigation can make an enormous difference in the outcome of a case.   The plaintiff’s bar is growing increasingly sophisticated in its strategic efforts to preclude employers from introducing into evidence these types of investigations.  They are also increasingly using employment practices experts to attack an employer’s investigation when they cannot preclude its introduction entirely.

For all of the risk managers, HR professionals and company counsel reading this, I urge you to consider using this jury verdict as a catalyst to review your existing investigation protocols.  A good tool to use in conducting this review is the Guiding Principals developed by the Association of Workplace Investigators (“AWI”).  AWI is a nonprofit whose mission is “to promote and support workplace investigations as a distinct area of expertise and to enhance the quality of workplace investigations.”  To download a free copy of the Guiding Principles click here.

New “Flasher” Video Uses Humor to Ask Serious Question – Who Will Your Employees Call if They Have a Compliance Concern or Complaint?

Win-Win Resolve, Solving Work ConflictReaders of this blog know I generally avoid using this space to directly suggest you retain me as an employment attorney, mediator or workplace investigator.

With this post, I’m making a bit of an exception as I want to share a fun new video I just had done for my law firm.  It uses a bit of humor to ask a serious question — who will your employees call if they have a compliance concern or complaint?

I hope you’ll indulge me and take a look at the video.  It’s only 2:38 minutes long and features a “flasher” …. now when’s the last time you saw that on a law firm marketing video?