02/20/2013 04:48:28 PM EST
Workplace Investigations: The Employee’s Lawyer’s Perspective
How do lawyers who represent employees decide which of
the employees who contact them to represent? According to Nina Pirrotti, an
attorney with Garrison, Levin-Epstein, Richardson, Fitzgerald & Pirrotti,
P.C., one of her "first lines of inquiry in evaluating a prospective client's
case is to review the employer's investigation." Ms. Pirrotti scrutinizes
an employer's investigation "both procedurally and substantively to determine
whether the investigations themselves are a product of further discrimination
and/or retaliatory treatment by the employer."
So, what specifically is Ms. Pirrotti scrutinizing when
she reviews an employer's investigation or put another way, how does she decide
whether to sue the employer? What can employers learn from
understanding her perspective?
Employers faced with the need to investigate an
allegation of workplace misconduct like retaliation, discrimination or
harassment need to understand that each step of the investigation will likely
be reviewed not only by an employee's attorney like Ms. Pirrotti but also by a
judge and jury should a lawsuit be filed. Good employers understand this
reality and take these factors into consideration when they decide who should
conduct the investigation. As such, they select well-trained, unbiased
investigators who have the time available to devote to conducting a thorough
and timely investigation.
Here are the top five red flags Ms. Pirrotti looks for
when she reviews a workplace investigation.
According to Ms. Pirrotti, an "employer who uses
an investigator who has a stake in the outcome or a personal relationship with
any of the witnesses involved in the investigation does so at its peril."
From Ms. Pirrotti's perspective, investigations conducted by a biased
investigator may compromise an employer's defense even more than no
investigation because they "convey a loud and clear message to the fact finder:
the investigation was orchestrated by the employer to justify a preordained
Ms. Pirrotti says "investigators who fail to explore all
reasonable leads also provide tremendous fodder for the plaintiff's employment
lawyer." She views such failures as being evidence of the "employer's
disinterest in learning the truth."
Credibility Assessment Problems
Ms. Pirrotti says she is surprised by how often she
reviews investigations where the investigator rendered an inconclusive finding
because the investigator failed to properly assess the credibility of the
witnesses. Good and well-trained investigators, recognize that
credibility assessments are not only a critical part of their responsibility
but also understand the importance of documenting how such credibility
assessments were made.
Flawed Investigatory Techniques
Ms. Pirrotti views witness statements that are virtually
identical in significant respects or that have the same "voice" as evidence
that the investigator did not use neutral interrogation tactics. At
trial, she would argue that an investigator who used leading questions that
suggested the answer or who used confrontational, accusatory questions that
intimidate witnesses, was more concerned about defending the employer vs.
conducting a neutral, unbiased investigation in an effort to learn the truth.
Failure To Preserve Records
In cases where the employer has failed to preserve
documents either reviewed or generated during an investigation, Ms. Pirrotti
views this as further evidence potentially bolstering a finding of
discrimination or retaliation. At trial, she would argue that the
employer's failure to preserve the documents is evidence that the documents
destroyed would have been unfavorable to the employer.
more articles about managing workplace conflict at Win-Win HR, a blog by
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