On Workplace Training, Investigations and Mediation (Part I)

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.

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Interview References:

• 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). 

• 7:23 | Chicago Human Rights Ordinance. Code § 6-010-040-b-1-C-ii. (2022). 

• 7:37 | Stop Sexual Harassment in NYC Act. NYC Local Law 96 (2018). (2018).

• 14:24 | Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Public Law No. 117-90. (2022). 

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TRANSCRIPT

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 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?