Wednesday, September 16, 2015

Why employers shouldn’t waste money on workplace investigations

In future blog posts, I will examine thoroughly the "independent" investigation that was conducted in my case and how it failed miserably.  Stay tuned... But in the mean time - it appears it was a huge waste of time and money for The Sliding Door Company.

Why employers shouldn’t waste money on workplace investigations

Employers now waste more legal fees on workplace investigations than on anything else.
Such investigations have become de rigueur in the public sector and among progressive employers, with many lawyers advising that an investigation is required before terminating for cause. Except… they are not. And, to the extent that investigations are even useful, they seldom need be conducted by third parties, let alone lawyers.
So why do so many employers routinely spend tens of thousands of dollars for investigations they can conduct as effectively themselves? It even makes less sense when, as often occurs, they could have fired the employee, even without arguing cause, for a fraction of the costs of the investigation.
If the investigator determines there is no cause, the money is wasted. And if the employer still wishes to fire that employee, as I find they usually do, they find they have now developed expensive evidence that  will be used against them. And because the investigation created an atmosphere of culpability and reputational damage, the employer also risks additional punitive and aggravated and even potentially defamation damages.
Courts are occasionally interested in whether an investigation occurred. They view it as fair play to let employees tell their side of the story. But winning or losing is ultimately a function of whether you have cause not whether you investigated it.
Employers should internally investigate misconduct before dismissing an employee for cause. It makes it less likely they will make a mistake and is fair to the employee. But, far more important, an investigation ties the employee down to a specific story before their imagination develops a resuscitated, more impregnable version of events to explain away their misconduct.
Equally helpful, employees often lie or refuse to answer legitimate questions. And that is cause for discharge even when the misconduct being investigated is not. So it is good practice to conduct an investigation even though you are not legally required to do so.
Even if the investigator concludes there is cause, the legal fees are still largely for naught as the employer must start again with fresh counsel. The lawyer conducting the investigation becomes a potential witness and their law firm conflicted out from acting.
The investigation report cannot even be used to support the discharge. The investigator’s opinion on credibility and as to whether there was just cause are irrelevant to a court or arbitrator.
In my case, the investigation was conducted by Linda Harris of JorgensenHR in Valencia.  When I was first contacted by Ms Harris, I declined to give her a lot of "additional" verbal information since I had documented my complaint thoroughly in writing.  As indicated above, a good part of the investigator's job is to try to catch employees in a lie.  Having everything in writing made my testimony clear.  Ms Harris, despite my written testimony, didn't contact my witnesses, didn't investigate any of the safety issues I brought up, but instead relied solely on testimony from TSDC employees (specifically, the son-in-law of the CEO).  

I called Ms Harris after about a week to inquire about the investigation and to offer to clarify anything that may have been in question.  Ms Harris told me she couldn't discuss the testimony of others and that her only questions for me were what I wanted as a settlement.  I didn't know, of course, that she had already accepted false testimony and evidence - and I'm guessing she didn't either.  But in any case, not sharing the information she had collected (claims of threats by the CEO's son-in-law) - which was THE BASIS FOR WHICH I WAS TERMINATED - has been a huge problem for me.  Since she didn't properly investigate this (or even bother to ask me about it), I have had difficulty getting legal representation.  This has greatly impacted how this case has evolved.  While the lesson above is not to waste money on workplace investigations, the additional lesson is that poorly investigated claims can be the cause of bad actions by companies - and open them (or even the investigator) to additional liability.  It isn't an investigation if you don't investigate the claims.

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