Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation about workplace investigations, the metaverse and how dolphins can fit into someone’s career story. Our guest is Lindsey Wagner, who founded Moxie, which offers workplace training and investigations to deter costly investigations and provide creative resolutions through mediation. (Listen to part one of our discussion.)
Workplace investigations have changed rapidly in the last decade, and more changes are coming, perhaps nowhere more challenging than in the metaverse. Preparing for such changes, both as an intellectual exercise and as a way to help clients, is part of what Wagner loves about being an employment attorney.
“How are we going to handle those issues?” she asks. “It’ll be a fun and exciting topic. One of the things about employment law in general is it always keeps you on your toes, and it’s changing every day. There’s never a boring day.”
This is the second part of our interview with Wagner. In part one, we talk about best practices in investigations, how to avoid them in the first place and how to resolve them once they’re completed.
Lindsey Wagner’s Moxie profile.
8:28 | Title VII of the Civil Rights Act of 1964, § 7, 42 U.S.C. § 2000e et seq (1964). US Equal Employment Opportunity Commission.
I. INTO THE METAVERSE
Matt Crossman, Host: We’ve talked at length (in part one of our interview) about the trends and what’s happening in investigations. What’s next here? What other innovations do you see coming?
Lindsey Wagner: Like in every industry, there’s going to be a huge change with regard to artificial intelligence and investigations. What sort of ethical issues surround using AI to draft opinions and draft reports and so forth? What sort of confidentiality issues exist in that use of software?
There’s also technology to tell if somebody’s telling the truth or if they’re lying from their voice and so forth. What are the ethics involved with using that sort of software as part of an investigation?
One of the other things that’s coming along is investigations in the metaverse and doing investigations for discrimination that’s happening in the metaverse. How do you identify the individuals that are making the discriminatory remarks? How do you verify their identities if they’re using avatars?
That’s going to open up a whole new realm of issues for workplace investigators. We’ve seen companies that have begun operating businesses on the metaverse. And so I’m already thinking ahead—how’s that going to work? How are we going to handle those issues? And so it’ll be an exciting topic. One of the things about employment law in general is it always keeps you on your toes and it’s changing every day.
There’s never a boring day.
When I’ve brought it up to some of our clients, they’re like, wait a minute: Let’s start off with what’s the metaverse? So we’ve got some ways to go until we actually get to those issues. As much as technology seems to be coming at us at a rapid pace, hopefully these are issues that we can at least somewhat start to get ahead and identify before they really become mainstream so we can decide what are the best business practices and approaches to handling them.
MC: I want to talk to you about how you got to this point in your career. If I’m a young attorney and I think, “Wow, that work that Lindsey Wagner is doing, that sounds really interesting, I’d like to dive into that.” What do I need to know?
LW: Yeah it is so interesting. I love doing this practice area. I’ve been doing employment law for the past 12 or 13 years and handling everything from just giving consultations to litigation, appellate work and so forth. Workplace investigations are really neat because they combine all of those skills that you’re using in litigation, but with actually not necessarily having to do the litigation.
You still get to use your skills of discovery and investigation, you’re still working with clients, you’re getting that connection with your clients, with witnesses and so forth, building that rapport. All of those skills that you learn and cultivate as a litigation attorney or even as a transactional attorney, are still at play here.
When getting into workplace investigations, it’s really helpful to have a foundational background in employment law to understand, even though you might not be making decisions of violations of law, you’re really looking into issues of fact, understanding what facts might give rise to a violation, what facts are important to explore, who you need to interview when you’re crafting your strategies and so forth.
So having that background of employment law experience is really important in my opinion, and so is also having great training on workplace investigations. Unfortunately, as much as I’ve seen this field grow in employment law, I’ve also seen a lot of people undertaking this kind of work without having the proper background or experience to know how to conduct a fair and impartial investigation. Some lawyers have trouble taking off that litigator hat, and they’re deposing the witnesses much more than they are actually being the impartial investigator.
MC: What is the difference here between deposing and investigating?
LW: When you’re investigating, you’re asking open-ended questions. You’re not coming in with a preconceived notion of right or wrong or bias. And it’s really important as a workplace investigator to make sure that you’re removing any issues of implicit bias or at least knowing when they could be triggered.
Part of the training for being a workplace investigator is identifying potential triggers for implicit bias and how to avoid or minimize the potential occurrence, whether that’s how you structure your investigation, or things like are you going to start with the personnel file before you interview a witness?
It is possible that if you look at the personnel file of a witness that there could be write-ups in there and those could be retaliatory write-ups. If you’re reading about the write-ups, you might have a preconceived notion about this witness before you’ve actually ever had the opportunity to talk to them.
So just deciding how you’re going to go about crafting your process of the investigation is really crucial and making sure that you’re being open-minded and asking those questions that are going to allow the witnesses to give you their full information rather than trying to lock them down to a certain answer.
Asking, “Isn’t it true that X, Y, Z”—that’s a horrible way to do an investigation. Great way to depose somebody, though.
II. CHOOSE YOUR OWN ADVENTURE … AND FIELD OF LAW
MC: I read your bio and I found an interesting trend of similar experiences that I wanted to ask you about. You studied law in Spain, London and the United States, and upon becoming a lawyer, you have practiced in three states and also in traditional employment law and investigating and mediating, and now we know you’re also a metaverse expert.
You haven’t been content to just do one thing and go in a straight line. What is the connecting thread between all of these different interests?
LW: Well, the educational aspect, and candidly, I love to travel. As far as staying in the front of employment law, one of the things that I’ve appreciated early on is that there are so many wonderful lawyers out there who were around when the Civil Rights Act of 1964 became a law and who were there, making the changes to Title VII and they know that law front and back because they were on the front lines as it got passed, and they’ve been litigating that for years.
And so one of the things I focused on as a younger lawyer, new to this practice when I was coming up and studying, was what can I do to set myself apart? And I know that I might not ever have the knowledge that the attorneys that are 30 years more experienced than me have, but I probably know what the metaverse is a lot more than those other attorneys.
And the workplace investigation aspects have been evolving. And so my goal has been to say, OK, based on my knowledge of what I’m good at and my generation and my experience, how can I apply that to what’s going to be in the future so that I can set myself apart down the line and be forward thinking as well?
And that’s served me well and it’s kept me on my toes and it’s been exciting and a ‘choose your own adventure’ practice, but something that I’ve thoroughly enjoyed and loved every aspect of the journey getting here.
MC: Sometimes in the choose your own adventure books, the outcome is bad. Tell me about a choose your own adventure decision you made in your legal career that you either regret or that didn’t turn out how you hoped.
LW: My first job, I was doing insurance defense. I met a lot of wonderful people, but it was just not my cup of tea. And I had great mentors, but I thought if this is what being a lawyer is, it’s just not necessarily what I want to do. But the beauty of that was discovering how many different other aspects of law that there were to practice and knowing that just because I’ve explored one part of my career doesn’t mean that you can’t change it and try something else.
So I had the opportunity to really figure out what it was that I wanted to do. And that’s when I fell into doing employment law. Candidly, I hadn’t ever studied that in law school. And so it wasn’t something where I set off from a young age of knowing that I wanted to be an employment lawyer.
But it is definitely something that I’ve discovered as being a passion, where I feel like I can make a difference, that is intellectually stimulating because it’s changing everyday. You can touch every person’s life doing this sort of work. Everybody has a job, has to make an income somehow, unless you’re really lucky and came into a life of not needing to work.
So it’s something where every person can relate to you. You can help everybody in some way. And it definitely keeps you on your toes. So as much as I explored one aspect of law that I didn’t like, I was grateful that I had an opportunity to change that. And that’s been true for my career being an employment lawyer.
There’s so many different aspects of employment law that I’ve had the opportunity to explore and I’ve said, eh, that’s not really what I love to do. But the beauty is you can still keep on doing the same field, and there’s different ways to practice it, whether it’s doing transactional work, whether it’s doing workplace investigations, whether it’s being a litigator representing employees, representing employers, doing labor law.
When there’s one aspect of the law that you don’t like, it’s nice to know that there’s a lot of different backups and you can try on a different shoe and see if it fits.
MC: Quick follow up to that. What advice do you have for that young attorney who takes the job with the insurance firm and says, Oh my gosh, my eyes. I can’t keep them open to get out of it and go find their passion like you did?
LW: Find a mentor. There are so many people out there that are willing to mentor and help because they either had somebody in their life that touched their life. So identify who are the people that have built a practice that you’re interested in or that you think could be intriguing or that you admire and reach out to those people.
And yes, you’re probably going to get some rejections, some people won’t respond to you, but you’ll be amazed at the people who do respond to you and will take their time for a phone call or to go get coffee to meet you and help you on your way. And those people that do take the time can genuinely open doors for you and give you opportunities.
The best opportunities of my career have come from taking a chance and reaching out to somebody cold and having a mentor that’s been there to help me along my way, and I am thankful for where I am because of those people. It’s been a tremendous learning experience for me to find people who you admire that are doing what you want to do and talking to them about it.
And you might find when you talk to them, hey, that doesn’t sound so glamorous after all, I don’t want to do that. But at least you know that versus starting that job and getting in there and thinking, wait, the grass was definitely greener on the other side.
III. KEEP CHIPPING AWAY
MC: A friend of mine uses the analogy of dolphins swimming, that the only thing a dolphin is supposed to do or knows to do is swim. So when you chose your own adventure and thought, I’m like a dolphin swimming, this is exactly what I’m supposed to be doing, what was the decision, how did you make it, and what happened?
LW: Yeah, it, I love that you used the dolphin analogy because actually when I was younger, I didn’t dream about being a lawyer. I dreamed about being a dolphin trainer. That’s what I thought I wanted to do. And here I’m being a lawyer, but I love dolphins. So good analogy.
As far as figuring out what I wanted to do it was testing around, seeing the people that I admire, who are they, and how can I do what they’re doing, and how can I get there? And it’s really baby steps, too, because in my experience I’ve wanted so badly for the sun, the moon, and the stars to happen the next day.
And when that change doesn’t happen right away, you think, goodness, am I doing something wrong? Is this ever going to happen to me? But I think the best advice that I’ve found is taking the baby steps. If there’s an interest that you have, looking at what classes do I need to take, who do I speak to, to make that dream a reality.
What foundational steps can I put into place now and everyday work at those. And for me, building the practice that I have now has been setting aside so many hours in the morning to say, “this is the time that I’m going to work on this part of my practice and I’m gonna build this up, and everyday I’m just going to chip away at it.”
And it happens one day that you wake up and you’re there. Today for me, I finished a call with a client and I hung up and I said, “I love my job.” And there’s just such a fulfilling feeling for me to think I get to wake up every day and do what I’m doing and work with the clients that I get to work with and the mentors that I get to work with.
It’s happened because of reaching out and taking a chance with talking to people and taking those baby steps to making what I thought would be the practice that I wanted into reality.
MC: You are at least the third guest to use some form of the expression of I love my job. What about employment law brings people such joy?
LW: So I think you get the opportunity to bring calm or understanding or clarity or comfort to people when they need it. I get a lot of personal satisfaction being able to help somebody figure out something, whether it’s a business owner and they’re trying to figure out a way to protect their company or do the right thing because it’s their company and it’s something that they’ve built up and they’ve put their blood, sweat, and tears into it.
An employment issue can, as we’ve seen from the news, really cause a lot of destruction if it goes the wrong way or if something’s handled the wrong way. And so it’s rewarding being able to take somebody’s hand and say, “I’ve got you, I’m going to help you through this,” and being able to bring that clarity into their life, taking their worries off of their shoulders and putting them on mine.
And while it definitely doesn’t define who you are as a person, having calm in your job definitely makes life a lot easier. So to be able to take somebody’s hand in that situation and say, “Hey, look I can give you clarity on this. This is illegal. It’s not illegal. Let’s walk through how to change this” and bringing people that sort of comfort to me is very fulfilling and something that I enjoy.
There’s also the intellectual stimulation from the changing of the laws. As much as sometimes you wake up and say, “oh my goodness, this means I’m going to have to change all these agreements because of this change in the law,” I still like it. It’s never one day that’s the same. And so it definitely keeps it interesting.
This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on March 29, 2023.
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