The Mediator, ADR Services, Inc.
In August 2014, 28-year old, Caucasian Police Officer Darren Wilson shot and killed an unarmed AfricanAmerican teenager in Ferguson, Missouri. When Wilson was acquitted of murder by a Grand Jury, rioting erupted and an outcry of unfairness pervaded headlines throughout America. Although this is no longer a “personnel issue”, since Wilson has resigned, it remains an emotionally charged event that set off a series of inquiries and a new dialogue throughout the United States on race-related tensions between AfricanAmerican citizens and Caucasian police.
In many ways, the tension between the confidentiality of workplace investigations that take place every year within Corporations throughout the Country and the litigation process that they serve remains as heatedis a debate and as complicated an issue as these race-relations. for corporations across the country. What aspects of the investigation should be committed to writing? How extensive should the inquiries be? Should all parts of the investigation, including the choices made as to what “not” to investigate be included?
New Laws Regarding Confidentiality of Workplace Investigations
Since the NLRB’sNational Labor Relations Board’s 2012 decision in Banner Health System (July 30, 2012) 358 N.L.R.B. No. 93, employers have been admonished that it is presumptively unlawful to demand that employees who are the subject of internal investigation investigations refrain from discussing the matter with fellow employees, even in the private sector. This stems from the theory that requiring. Requiring strict confidentiality, the theory goes, may unwittingly impede employee’s rights toemployees’ concerted action in the workplace. Accordingly, these highly sensitive internal investigations have become fair game for water cooler gossip in the guise of “Section 7 rights” unless there is a demonstrated and articulated legitimate business justification that outweighs the employees right to concerted actionrights.
When used in the context of mediation, these investigation reports may take on a new and clearer level of confidentiality. In fact, ifIf the report is prepared in contemplation of mediation, it may well be protected from disclosure under the very strict mediation privilege. Because few cases go to trial, parties should prepare investigative reports with mediation in mind.
Because so few legal cases are actually going all the way to trial, workplace investigators, and lawyers who engage them, should be aware of the utility of actually preparing theses investigative reports with mediation in mind.
Under California Evidence Code Section 1119: “[N]o, “no writing, as defined in Section 250, that is … prepared for the purpose of, in the course of, or pursuant to a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action or other non-criminal proceeding in which, pursuant to the law, testimony can be compelled to be given.”
The confidentiality statute has been broadly construed and consistently upheld in a series of cases where parties sought to set aside settlement agreements based upon fraud1 , legal malpractice2 , failure of informed
1 Facebook, Inc. v Connect U LLC (2007) 489 F. Supp. 2d. 1087
2 Cassel v Superior Court (2011) 51 Cal. 4th 113
consent3 , and even incompetence4 . . Neither the lawyers, nor the mediators have been compelled to reveal evidence used in or prepared for mediation in subsequent legal proceedings.
HowUsing Investigative Reports Can be Effectively Used in Mediation
Consider the case of the disabled Kindergarten schoolteacherteacher, Maggie, who is informed that the School District she will be terminating her employment terminated after two academic years of a disability leave of absence for chronic back problems. . After 30 years of loyal service, Maggie was shocked and hurt that her termination came in a letter from someone she’d never met, without anywith no effort at any engagement in an interactive process to determine if her physical needs she could be accommodated. Not surprisingly, Maggie She consulted her Doctordoctor, who provided a letter releasing her to return to work with restrictions.
Upon receipt of that letter, and now within days of the new school term, the District the district simply provided another letter that stated thatstating it had investigated the options for accommodating Maggie’s restrictions Maggie and concluded that there was no alternative but to sever her employment at that time. . The Personnelpersonnel director claimed she had reviewed Maggie’s most recent physician’s letter (which restricted her from lifting, bending, sitting for long periods or serving on the play yard) and discussed the request for accommodation with the Principal of the elementary school where she had been based. school principal. Together, they concluded that there was simply no available accommodation for her. She.
Maggie was terminated with no severance pay and basically nolittle notice because she had been on longterm disability (without pay for the prior two academic years). Maggie. She consulted an attorney within days thereafter. Naturally, the Attorney, who requested, but did not receive, the full and complete investigative report, together with all notes, memoranda and other evidence of the investigation, which the employer had referenced in its termination letter. He only received the email exchange between the H.R. Managerpersonnel director and the Principal. There was no report writtenprincipal.
At the mediation of this case, which went to litigation and was now approaching trial, the obvious inquiry was: “What what investigation was actually conducted to determine whether Maggie was qualified to perform her duties and what did the School District do to assess whether she could perform with accommodations as her Doctor recommended?”
there were no available accommodation. The school district would The School District ended up paying Maggie damages to Maggie because they were unable (or unwilling) to could not produce theany investigative report as to her claims. While they contended that they had investigated all possible accommodations, there was no report to . There was no evidence that any investigation had been conducted at all. Instead, there were, just a series of curt emails which seemed to be justifying the foregone conclusion that the Districtdistrict had made up it’sits mind that the individual would not be returned to work after such a lengthy leave of absence.
Had the Districtdistrict maintained a report that established that they had actually assessed herMaggie’s competence to perform and concluded that she could not, there may not have been a solid basis for liability. Instead, the failure to provide any evidence of a legitimate investigation subjected the school district to paying a settlement equal to two full years of Maggie’s salary.
In a different case, this one for alleged pregnancy discrimination;, it became apparent that there was a kind of dual standard for managerial employees and lower -level women who requested accommodation during and following pregnancy. The investigator found that the Companycompany had done a great job of providing special private areas for nursing mothers and allowing supervisors to work from home for up to six months while transitioning into parenthood. The problem was that. But the investigator had not interviewed the fifteenseveral women who worked at the lower -level, non-supervisor jobs and, who had
3 Wimsatt v Superior Court (2007) 152 Cal. App. 4th 137
4 Olam v Congress Mortgage Co., N.D. Cal. 1999; 68 F. Supp. 2d. 1110
not been offered such accommodations. The investigative report was very thorough, but did not appease the Plaintiff or her lawyer because it did not include interviews of anyone at her level in it.
Again, theThe case was settled in mediation, and because the report in that case was specifically prepared for mediation, it will remain confidential. The bonus, however, was that the now enlightened (female) Corporate Counsel general counsel and her (female) outside counsel were intent upon making positive changes so that the Companycompany would not be at risk of future litigation when the next lower-level female employee decides to beginbegins a family and attempt to juggle that ever-challenging work-life balance and because the law and the culture of the particular company compelled them to reasonably accommodate pregnant women and not to treat them differently based upon their status.
The mediation was also an opportunity for the General Counselgeneral counsel and outside counsel, who were both female and mothers themselves, to express their regret to Lisa, the Plaintiff, thatplaintiff she had not complained to them directly or made her needs or demands known to them before resigning and suing the Companycompany under a theory of constructive termination arising out of gender discrimination. Instead, she. She had only complained to her own supervisor, — an unsympathetic ear, who had made no efforts at accommodation. Because pregnancy and infancy is limited in time, the Plaintiff simply was unwilling to wait patiently while changes may have been made at the level of her office, during which time she occasionally needed extra rest or privacy during her pregnancy and the immediate months after returning to work after the baby was delivered.
Finally, consider thein a third case, a public sector employee who was disciplined for physically threatening his supervisor at work. He appealed the suspension of his job duties (30 days without pay) during a period where he was on a protracted medical leave of absence for emotional and physical injuries.
The discipline was based upon an extensive, written investigation with numerous employees interviewed. Because the hearing was “de novo” (following a Skelly hearing which took place before the discipline was imposed)5 , overOver 40 independent witnesses were subpoenaed and testified at an administrative hearing that they had witnessed the Appellantemployee acting strangely and sometimes appearing to physically threaten his very demure Supervisor and other co-workers. supervisor. Many of the witnesses left the witness stand in visibly shaken or in tears, after being interrogated directly by the Appellantemployee at the Administrative hearing. In the end, theThe thoroughness of thatthe investigation, corroborated by live and credible witness testimony, was enough to justify the suspension and the Personnel Commission upheld the discipline over the angry protests of the Appellant. .
An interesting twist to that matter included a sub-rosa investigation of the Appellant's propensity towards violence and the security risk he may have imposed. During the course of that hearing, the Administrative Hearing Officer observed some erratic and troubling behavior by the Appellant. At times, his face would redden and he would breathe loudly and perspire visibly. At times, he would demand immediate breaks in the proceedings, even over the suggestion by the Hearing Officer that the timing was bad and the break would be better taken after completion of a particular bit of testimony. The Hearing Officer expressed these concerns to the Executive Director of the Personnel Commission, who invited a workplace security expert to attend the next day’s proceedings.
After a full day of observation, the workplace expert concluded that there was no immediate threat of danger to those engaged in the hearing, but that this individual should have a mental “fitness for duty” examination before being returned to the workplace. Because his return to duty was not imminent, she chose not to reduce her findings to writing. This was a strategic decision which she determined on her own and which may have other consequences in the future. There is a risk that he will be returned and harm someone, but it was a risk that she believed based upon her observation and expertise was worth accepting over the potential harm of reducing her observations in writing and including them in his personnel file may have engendered.
5 Skelly v State personnel Board (15 Cal. 3d. 194) requires public sector employees be afforded a pre-discipline hearing in which the employee responds to the Notice of Intent to impose Discipline.
Beware of what is Deliberately Not Included in the Investigative Report
By far theBeware Deliberate Omissions
The most damaging aspects of workplace investigations in the mediation of a workplace dispute are the absence of any credible investigation or the failurecontext is failing to consult and interview the complaining party
As painful as it may be, itIt is absolutely necessary to interrogate the complaining party and assess her point of view before deciding upon the particular course of action when she is still employed. For example, in.
In a multi-national corporate dispute, a young female translator alleged gender discrimination because her male counterpart was getting all of the “plum” assignments all over the world, while she was toiling away translating documents at her desk state-side. The Company alleged thatcompany said the clients had expressed a preference in working with males, as some other cultural norms did not typically welcome women into these high level meetings.
The investigation into Ivana’s complaints included extensive interviews and statements made by coworkers, everyone in the chain of command of both employees, and even a few clients of the firms. . All confirmed that the assignments were not made based upon gender, but qualifications. However, Ivanathe plaintiff was never interviewed.
It was a fatal error, because Ivana was able to credibly she could identify people to whom she had complained to of disparate treatment over the course of 10 years as an employee there. of employment. The error cost the Companycompany wound up paying several hundred thousand dollars in a mediated settlement, but was — one that could have likely been avoided had the company been brave enough to carefully interview the complainant, and not just those who defended against her complaint of gender discrimination. The disparate treatment likely could have been remedied before the Plaintiff quit her job and then suffered substantial lost earnings while looking for alternative employment in this highly selective and well-paid career..
Now that it is clear that there are broad protections of confidentiality if used in a mediation process, why not engage in the most thorough, thoughtful investigation available in all such reports?
Your Secrets are Safe with Your MediatorMediators
There is an art to conducting a thorough workplace investigation and then reducing it into a written report. Tensions always exist between the legitimate desire to preserve testimony, uncover evidence, and prevent any whitewashing and cover-ups.
Because employers can no longer demand that employees keep the workplace investigation confidential, the mediation process may be the ideal way to protect the content of the investigation from flaming the fires of widespread dissension, such as we witnessed last summer in Ferguson, Missouri. . And after all, if members of that community could have come together in a protected space with a third party neutral and representatives on the Police Force, isn’t it possible that riotingit could have been prevented andlead to a new, more productive dialogue regarding raceemployee relations as it impacts police enforcement could have ensued?
Jan Frankel Schau is a full time neutral with ADR Services Inc. in Los Angeles. She is an avid author, including a book, “View from the Middle of the Road: A Mediator’s Perspective on Life, Conflict and Human Interaction” (Author House, 2013) and specializes in the mediation and arbitration of litigated disputes arising out of employment, business and torts. SheYou can be reachedreach her at: www.schaumediation.com or at ADR Services: (310-) 201-0010