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, training and arbitration. Our guest is Lindsey Wagner, who founded Moxie, which offers workplace training and investigations to deter costly investigations and provide creative resolutions through mediation.
Wagner says the best way to handle a workplace investigation is to be ready for it before it happens. That means having policies in place and training your employees to follow them.
Some states require training, and even in those that don’t, Wagner strongly encourages her clients to conduct it anyway. “So many times we see issues with employees where they don’t know,” she says. “They say, ‘I didn’t know that wasn’t OK. And now that I know, I won’t do it anymore.’ And so many of the issues that come into play could have been avoided by a proper education and training of employees.”
This is the first of two podcasts with Wagner. In this episode, we talk about best practices in investigations, how to avoid them in the first place, and how to resolve them once they’re completed. In the second episode, Wagner traces her career from a childhood spent longing to be a dolphin trainer to waking up every day excited to go to work.
Lindsey Wagner’s Moxie profile.
3:52 | U.S. Equal Employment Opportunity Commission (EEOC). (n.d.). Checklists for Employers.
5:04 | State of California Civil Rights Department. (n.d.). Sexual Harassment Prevention Training.
6:06 | Sexual Harassment Prevention Training for Employees. California Government Code § 12950.1, (2022).
14:24 | Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Public Law No. 117-90. (2022).
I. HOW TO BE PREPARED FOR AN INVESTIGATION
Matt Crossman, Host: Let’s start at the very beginning, before an incident that leads to an investigation even takes place. I imagine as you train companies on discrimination and harassment, you see the same issues crop up over and over again. You get the same questions over and over again. What are those questions and issues that if companies or employees understood them better would go a long way toward avoiding the situations that lead to investigations in the first place?
Lindsey Wagner: So I think from the beginning it’s really important for an employer to have a solid policy in place, whether that’s a full-blown handbook policy or something less formal that outlines just what’s expected of employees.
The other thing that’s really important, and not just because we do workplace training, is the workplace training aspect of it. Many states have actually required workplace training for sexual harassment and so forth. Those states include New York, California, Illinois, Maine and others.
It’s a really wonderful way to educate employees about what conduct is actually appropriate in the workplace. And so many times we see issues with employees where they don’t know. They say, “I didn’t know that wasn’t OK. And now that I know, I won’t do it anymore.” And so many of the issues that come into play could have been avoided by a proper education and training of employees.
MC: Are we to the point yet where you might as well just do the training even if it’s not technically a legal requirement in the state you’re in?
LW: So even though there’s not necessarily specific statutes or laws in each state requiring training, there are general provisions within the Equal Employment Opportunity Commission guidance that actually say, “Hey, you have to engage your employees or educate them on certain aspects.”
And those situations will be looked at if and when there ever is a complaint of discrimination, harassment or retaliation. What did the employer do to prevent that from occurring? And one of the defenses that an employer could use would be to say, “We did try to prevent this. We’ve required our employees to undergo training. We’ve trained our supervisors as well.”
So while it might not be required, it’s certainly best business practice that I’d advise all of my clients to consider, especially when you get to a certain size where you’re going to be subject to those potential laws under state or federal law.
MC: It sounds like the training is evolving to keep up with modern times, modern issues and modern struggles that we have.
LW: It is, and it’s interesting because even since we’ve seen these training requirements come about under state or local laws, we’ve also seen an evolution of what’s required in the training.
For example, California has had some model training, but it has added additional elements to that training since it first became law, such as training on certain issues with regard to gender discrimination and other aspects of gender.
MC: You wrote on your blog that professional advice can help craft efficient investigation techniques. When should that professional help come? If you wait until you need an investigation, it’s too late to craft those investigation techniques. On the other hand, not all companies can afford to have investigative technique training ahead of time. So what’s the balance there?
LW: That’s a good question. And one of the things to also highlight why I think this new required training under state law has been so effective is that they’ve actually thought about those things.
So for example, under the California law, not only do you have to do the training, but you have to have a complaint procedure. You have to have certain policies already outlined. And the beautiful thing about California, and a lot of other states, is they actually give you a model policy. They’ll give you the model complaint procedure.
They’re not saying, “Hey, employers, go out and figure out how to do this yourself.” They’re giving employers the model examples and then they can use those to customize them to their actual work situations.
So it’s not always that you have to hire an employment attorney or another HR professional to draft these from scratch and require you to pay a lot of money. There’s wonderful resources out there that are free, and the states are getting employers to think about those things proactively by requiring them as part of the training process.
MC: Very often on these issues, California is the tip of the spear—they’re setting the policy that other states then either copy or copy and fix. Is that what’s happening here? What is happening in the rest of the country?
LW: I use California because it’s where I most commonly practice.
The city of Chicago is really leading the charge with the bystander intervention piece requiring, I believe, up to one full hour of bystander intervention in addition to the other training requirements. New York, I believe, has an aspect of bystander intervention training that’s required, but that’s new, and so that’s something where I probably wouldn’t give California credit for leading that.
We’ve seen New York and Chicago leading a charge on those aspects, but California, Maine and Connecticut have been other states that we’ve seen putting these policies forward and seeing other states follow the trends of them.
II. WHAT TO DO WHEN AN INVESTIGATION ARISES
MC: So let’s get into the nuts and bolts of an investigation. A company is made aware of, let’s say, discrimination allegations. What is the very first step the company should take?
LW: Good question. With regard to the complaint procedure, the first thing is to make sure that they’re following their policies, so we want to go back and look at what our policy says and make sure that we’re following that consistently. We don’t want a situation where one complaint is handled one way and another complaint is handled another.
When we’re deciding how to handle a complaint, even though the idea is that every complaint should be investigated in some way, what does it mean to have an investigation? Does it mean that you need to hire somebody externally? Is it sufficient to have somebody internally handle it and does it need to go into witness interviews and so forth?
But it’s really making sure that you have a plan in place when you get that complaint, and then that you’re handling those sorts of complaints consistently.
MC: You touched on something in there that I wanted to ask about. Is there a standard or a way of thinking or categorizing an event that you would tell an HR executive, this is when you need to bring in an outside expert?
LW: No, and I’d say the toughest part about workplace investigations is really making that crucial initial decision as to whether or not it’s going to be an investigation that you’re going to handle in-house or through your retained employment attorney that you’re working with, or are you going to outsource it to somebody externally that’s a neutral third party?
And so there’s not a bright-line rule as to when a complaint rises to the level that it should be sent to an external versus internal, and it’s really important to look at the severity of the complaint and who’s involved with it.
We see problems often when you have an internal HR person investigating an issue about a complaint about their boss—the person who’s going to be making decisions about their promotions and about their salary and so forth is the same person that they’re actually investigating.
That obviously creates an issue of potential bias. And so that might be a situation right then and there where you’d consider hiring an external investigator, but you really want to look at the issue from a bias standpoint. The law requires that you conduct a fair and thorough investigation of complaints. And so what is fair and thorough given the circumstances really depends on who’s making the complaint, who’s involved with the complaint, and the severity of the situation.
MC: What mistakes do you see companies making in their handling investigations?
LW: I’d say the biggest one is not knowing how to handle the complaint or not appreciating that the complaint’s actually about discrimination or harassment and not taking a complaint seriously.
So often the litigation that ensues from an employee complaint is that it just wasn’t handled properly at all. Handled properly means actually interviewing the individuals involved, doing an investigation, whether that’s internal or external, and making sure that each complaint is dealt with. It’s surprising to me how many times we see complaints that could have maybe been resolved or not escalated had they been handled properly and given due attention when they actually arose.
So many times somebody might not use the terms discrimination, harassment or retaliation in their complaint, but when you take the time to interview them or explore more about their issues, you uncover that it actually was a discrimination, harassment or retaliation issue.
And so there is an obligation to conduct that investigation to uncover if there are those issues. Obviously there’s a point where the employee is responsible, too, for putting the employer on notice of those potential issues and so forth, but it’s really a balancing act as well as to what did the employer do in response to that? Did you interview? Did you ask questions? Those would be things that would be explored if that issue did escalate into litigation.
III. THE BENEFITS AND PITFALLS OF MEDIATION AND ARBITRATION
MC: Let’s imagine a company hired you to do the investigation. You’re completely done. Now it’s time to go to mediation. What do HR execs need to know about that world and how it’s changing?
LW: There’s an opportunity here that I’ve seen becoming more common with a facilitated dialogue where you might be wearing the hat of an investigator and then switching over to mediation.
Traditionally there has been a really fine line between workplace investigators and mediators. You’re not often going to see the same person conducting the workplace investigation also conducting mediation unless you’re in that facilitated dialogue world. The ease of scheduling via Zoom or remotely has made it incredibly efficient and easy to conduct mediation before we get to litigation. The cost of what a mediation might be really pales when compared to what litigation might be. So if there’s an opportunity to get it resolved, mediation’s a wonderful opportunity to be able to explore that, especially early on.
I’ve seen a lot of employers recently that have been actually crafting employment agreements or arbitration agreements to include a requirement that the parties have to attend some sort of mediation before they proceed with litigation or with claims, and that gives everybody an opportunity to sit down before the heat turns up and see if there’s an opportunity to work out an amicable resolution.
MC: Forced arbitration—that’s controversial, right? Forced arbitration in sexual harassment cases was banned early last year. That ban hasn’t expanded to other areas of harassment. Do you think it will?
LW: You’re hitting on a hot topic there for employment law, and both sides have very strong opinions.
On one end, arbitration provides a wonderful opportunity for confidentiality. It’s more efficient and cost effective than litigation, and the parties get to choose their own individual who’s going to resolve their case versus having a jury or a judge make those decisions.
But in actuality, we’ve seen a lot of pushback about whether or not arbitration truly is cost effective. Does it create barriers to justice, especially for low-wage workers who might not otherwise be able to afford the cost of an individualized case? We’ve seen a lot of lobbying and a lot of push from both sides on that.
MC: That leads right into my next question. An investigation is challenging enough, figuring out how to resolve it, perhaps even more so. I noted in your bio that one of the goals of your company is that you strive to help create solutions that promote a balance of justice for both employees and employers alike, which sounds wonderful, but in real life, what does that look like?
LW: So from my past experience, I’ve had the opportunity to represent both employees and employers in litigation matters. And so it really is a balancing act when we’re trying to resolve any kind of matter, especially when you’re putting on the mediator’s hat. And one of the phrases that some of my favorite mediators have liked to use is, “a successful resolution will be one where both sides leave a little unhappy and not getting exactly what they want, but they can live with it, and the next day the matter’s done and they can move on with their life.”
So it’s all about exploring opportunities for balance, being creative in that, too, and open-minded. You get so many situations where somebody comes in and says, I want A, B, C, D, but when you actually explore it, what’s important to them is X, Y, Z. They say one thing, and they mean another, and so being able to have the ability to target what's really important, what’s driving their position there, what’s driving the dispute, and where can we find a bridge to connect those two, even if it’s not exactly what everybody wants, it can be something that everybody can live with and move on.
IV. THE CHALLENGES OF HIGH-PROFILE CASES
MC: We’ve discussed sexual harassment allegations in a couple of these answers. You’ve spent a good chunk of your career as an entertainment lawyer, where sexual harassment and the Me Too movement was and remains huge. What unique challenges do investigations into discrimination and sexual harassment in the entertainment world pose?
LW: So with the entertainment world, obviously you’re going to have increased issues regarding confidentiality issues, especially because you’re typically dealing with high-profile individuals or projects and so forth.
On the same token, the entertainment industry is very reputation driven. We saw that as part of the problem that was identified with the Me Too movement and the Harvey Weinstein cases. There was the fear of reporting and the fear of complaining about the harassment, the abuse and so forth based on fear of reputational damage.
And so we’ve really seen a turning of the tide, I’d say, with the approach that the entertainment industry has taken in regard to that, in part by legislation, in part by cultural changes where more and more companies are welcoming the complaint process, not only because they’re required to do so, but because it’s good business practice to do so.
We’ve seen some change of that too, but there will always remain those intrinsic issues with regard to confidentiality and handling those matters a little bit differently than you might have over the course of other fields of investigation.
MC: You touched on reputation there. Do you see any movement in a company wanting to handle these issues well because it serves them well. When you’re publicly accused of something bad happening, if you handle it well, that’s hugely important. What is the trend along those lines?
LW: One of the ways that we’ve seen that really come to light has been pay equity issues. For example, we’ve seen some legislation where there’s been certain requirements or attempts to require companies to provide publicly their pay data as it relates to pay equity issues and so forth.
And we’ve seen some interesting approaches companies have been taking for that, some publishing their pay data and saying, “Hey, look, here’s what it is. No, we’re not doing great and we’d like to do better, but we’re not going to hide the ball here, and we’re making improvements.”
And what we’ve seen is a lot of companies that have been doing that have had some favorable results in the public eye for acknowledging the fact that they have some opportunities to grow, some opportunities to improve, and by taking a public stance to say, “This is what we’re doing to change that,” versus the companies that we’ve seen not come forth with that information, not publicly acknowledge that. And as a result of that, the employees that are bringing the claims are the ones that are leading the narrative on those sorts of situations about all the employer’s shortcomings.
So it’s been an interesting strategy for the companies that like to get ahead of it and say, look, we know this might come out eventually anyway, so let’s get ahead of it and talk about how we can do better.
I loved that approach for companies and from a litigation standpoint, it does make it a little bit more difficult as an employee side case when the employers put all the good and the bad out there. They definitely have, in my experience, a little bit more of a positive image in the public because they’ve already gotten ahead of the bad. So it’s an interesting strategy for sure.
This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on March 29, 2023.
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