Apr 24 2017
By Daniel Schwartz on
The Dialogue — one of the more popular recurring posts — returns for the third time. Does that mean the third time’s the charm? Or is it three strikes and we’re out? In any event, Nina Pirrotti of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, P.C. returns for this installment where an employee-side and employer-side attorney discuss the issues of the day. Today’s topic discusses the lay of the land when an employee files a complaint against his or her current employer. Well, that and Unicorn Frappuccinos….
Nina Pirrotti: It is that time, once again for the two of us to lock horns, I mean engage in a spirited discussion about, how we both help our clients to navigate thorny issues which arise in the workplace. One such issue is how to advise our clients when an employee has alleged discrimination while she is still employed with the very employer she is accusing of wrongdoing. Wow. I feel a knot forming in my stomach just contemplating it!
There are many complexities inherent in this scenario at each stage, from how the complaint is initially expressed, to the manner in which it is investigated, to whether the employee who complains should stay or go (or something in the middle like a leave of absence) to various resolution options. In fact, I feel so strongly that employees and employers often botch one or more facets of this fraught situation that I proposed it as a subject for a panel at NELA’s annual employment conference this June and I will be speaking on that panel!
I think I will start the ball rolling by saying that my biggest fear is that clients who remain working in a hostile work environment often feel so powerless and outraged by their situation that they are vulnerable to doing everything wrong from making more frequent mistakes to lashing out at supervisors or peers or far worse. I used to save my admonishments about refraining from such behavior for my less sophisticated clients until it became clear that my C-Suite executive clients were just as likely to partake. Now, no matter who my clients are, a big part of my counseling session revolves around how they should conduct themselves in the workplace. If anything, I want them to strive even harder to be consummate professionals, above reproach. My most common refrain is: Do not arm your employer with a legitimate justification for terminating you!
There is so much to territory to explore here, Dan, but, could you highlight for me one or more of your biggest concerns when a client comes to you and says one of its employees has alleged discrimination or harassment in the workplace?
Dan Schwartz: Locking horns, eh? Perhaps you’ve had one too many Unicorn Frappuccinos (R.I.P.) from Starbucks. Alas, I do tend to agree with you that this is one area where rainbows and happy endings are rare.
When I hear about current employees who bring suit against their employers, I tend to think an apt comparison may be the spouse that files for divorce but the couple still has to live in the same house. It’s awkward. Everyone is walking on eggshells.
The fact is that one big concern I have for employers in this situation is to avoid a retaliation claim. You say you encourage employees to be “above reproach” and I wish that were always the case, but sometimes employers will get these types of claims and they’re in the midst of either terminating or disciplining an employee — what then? If they do so after the claim, they’re opening themselves up to a retaliation claim. And we know how nasty those can be. (Documentation is critical.)
But if it’s a harassment complaint that the employer gets, it typically becomes a real fire drill — drop everything and begin an investigation. That investigation may or may not need your client’s help, Nina. So what do you do in that situation where an investigation pops up?
Nina: Ok – you got me. I couldn’t resist looking up the Unicorn Frappuccino on Google after my husband assured me you weren’t making it up. This is how Starbucks describes it: “Magical flavors start off sweet and fruity transforming to pleasantly sour. Swirl it to reveal a color-changing spectacle of purple and pink.” It sounds like a liquid nightmare. Hmmm could the Unicorn Frappucinno’s “magical flavors” be a metaphor for the very type of employer-employee relationships of which we are speaking?!
Of course, when an employee alleges harassment, the employer is obliged to promptly and thoroughly investigate her claim and the employee is obliged to fully cooperate and participate in that investigation. With that said, I sometimes think that the employer and employee would both be well served to have employee’s counsel participate as a silent observer.
How in the world could it ever be to the employer’s advantage, you ask? Well let me tell you a little story. I once represented a high level executive who alleged harassment after which the employer hired an outside investigator. So far so good, right? The company’s lawyer did not want me to participate in my client’s interview so, in addition to urging her to fully cooperate, I suggested she take careful notes. Well during the interview that investigator informed my client that in all of her years she had never seen an employer who retained an employee after receiving a letter like the one her lawyer wrote (I write one mean letter apparently). She also asked my client what her lawyer had told her and inquired as to what she was looking for in the way of settling her claims. Fortunately, my client was well prepared for the investigator’s interview and did not take the bait!
The case ended up settling well and I cannot help but think that the investigator’s behavior (which, of course I shared with the employer’s lawyer) played a role in that. The disadvantage of this approach from our perspective is that the plaintiff’s lawyer could become a witness unless she has the luxury of sending an associate in her stead.
I have written and spoken on the topic of workplace investigations quite a bit so what I am about to say is no big secret but I scrutinize such investigations both procedurally and substantively to determine whether the investigations themselves are a product of further discrimination and/or retaliatory treatment by the employer. Some of the red flags I look for are: incomplete or delayed investigations, the investigator’s failure to make credibility assessments (and therefore reaching inconclusive findings in all “he-said, she said” scenarios), flawed investigatory techniques (such as sharing information gained from one witness with another, intimidating the witness or coaching the witness), and failure to preserve evidence gathered during the investigation. By far, though, the biggest arrow in the plaintiff’s quiver is the biased investigation which, in my humble opinion, compromises an employer’s defense more than no investigation at all.
So, Dan, how do you guide your client’s hike through this thorny thicket? What are some of the factors you consider in recommending an inside or external investigation? Do you ever permit the employee’s lawyer to be present? How do you maximize the chances that witnesses will feel comfortable telling the truth and that investigators will do their job in ferreting it out? Do tell!
Dan: First of all Nina – you employee-side attorneys are always so skeptical of things that management lawyers tell you. I mean, I couldn’t make up Unicorn Frappuccinos if I tried. You know there’s something called “Cap’n Crunch donut holes” at Taco Bell too, right? And even Unicorn Poop cookies? (Confession: Haven’t tried any of those, but I was curious about the Dunkin’ Donuts Pretzel Chocolate donut….)
Anyways, if it appears I’m avoiding the subject, it’s for good reason: I’ve also never met an employee-side lawyer who was really happy with the investigation done by the employer. It’s the classic Goldilocks issue: The investigation is too light; the investigation is too intrusive; the investigation isn’t fair; or, the investigation is biased etc. In fact, I’ve heard the “biased” complaint more often than not.
From my perspective, the employer really is in a no-win situation: if it hires an outside investigator, it runs the risk of not fully understanding all of the nuances in the office; if it uses someone internally, it runs the risk of being accused of “protecting itself”. I think the path that employers seem to be using a bit more is to have their outside counsel then retain a separate lawyer or professional to conduct the investigation on the outside counsel’s behalf. In doing so, employers can retain the option of claiming the investigation is privileged. If the employer then wants to use the investigation, it’s outside counsel is not conflicted because the investigator will be the only witness. Another factor to consider is how high up the “chain” in the company the investigation will go; if it involves the people who would otherwise conduct the investigation, it’s best to go outside the company.
As for employees having their attorneys present for the investigation, I’m going to defer to the common attorney refrain: “It depends.” We haven’t ruled it out in all such situations but the ones where it is permitted, the attorney is asked to be a bystander, not a traffic cop. And, of course, having the attorney answer such questions on behalf of their clients affects credibility determinations.
But I think employers who have their counsel (inside or outside) conduct investigations should be very cautious about talking settlement with the employee without the attorney present, when you’ve represented that you’re just conducting an investigation. First off, it might violate ethical considerations to talk to the person without their attorney. And second, it’s probably going to only anger the employee’s attorney if you do a bait-and-switch. That will lead to greater skepticism.
That said, I really do wish employee-side attorneys would allow their clients to be interviewed as part of an investigation. Employers can sometimes demand it but employers often just want to get to the bottom of what happened and knowing the details from the employee will help.
Let’s put the issue of investigations aside for a minute. Fighting with your employer seems unnecessary at times. When do you counsel your employees to find a new job rather than dig in for a battle with their current employer? What are the factors that go into that? After all, despite the economy, there still seems to be plenty of employers hiring in Connecticut….
Nina: Do you mean when do I advise a client to go “gentle into that good night” without even a separation package? If so, the answer is also, “it depends.” If my client has another job offer for a job she is actually interested in taking and the pay is comparable to her current position, unless her potential claims against her current employer are likely to generate a large compensatory damages (i.e. emotional distress) award, and/or a large back pay award (say, for example in a failure to promote case), I will likely advise her to take the job and get on with her life.
Chances are good that if I have a client who has reached this point she is miserable in her current work environment and the Pirrotti-modified cliché “life is too short to have litigation loom large over the next couple of years of your life” comes to mind.
But the time is ripe to turn the tables: in what situation(s), Dan, would you advise your employer to do what it could to keep an otherwise valuable employee who has complained about discrimination and harassment and how would you advise the employer to go about doing just that?!
BTW, we have yet another thing in common –that chocolate pretzel donut doesn’t sound half bad . . .
Dan: Mmm. Donuts.
Finding valuable employees is tough. It costs a lot for employers to train new employees and sometimes those new hires are busts. So, if there is a way to salvage a relationship with an employee, I often encourage employers to look at things from both sides. Maybe a change in supervisor will be the right fix? I think we can both agree that not all supervisors are created equal. And look, sometimes that baked good is actually just the basis of a “hostile work environment”. (The case of Smith v. Hy-Vee comes to mind. Ewwww.)
I like your cliché. I said something similar — that “employment litigation is a messy endeavor. It’s time-consuming, costly, and often times, leads to imperfect results.” And in perhaps in a moment of clarity: “Employees who are thinking of bringing suit against their employers should seek counsel that won’t sugarcoat their case for them.”
Given our discussion of Frappuccinos and donuts, I think we can agree that I’m a little too focused on sugar. And that this is probably a good place to end.
Next time, and given your location in New Haven, we can also discuss what pizza is our preference.
Nina: Ah, my management lawyer friend, the pizza topic could consume an entire “next time,” not only given my location in New Haven but also my celebrated status as foodie extraordinaire. In case you haven’t figured that out yet (and you don’t miss a trick so I have no doubt you have), it is not a coincidence that food has figured prominently in our conversations – reflect upon the shrimp taco and papaya-guava smoothie conundrum from our last go-round!
I am already looking forward to next time . . .