Monday, August 9, 2010

Lawsuit Proof Investigations

One of the best Lawsuit Prevention Strategies that I advocate to my clients is how to anticipate the myriad of ways a plaintiff’s lawyer will undermine the investigation that you, the employer (or in many cases the human resource investigator or in-house counsel), conducted. Why does this prevent lawsuits? Because (1) a Lawsuit Proof Investigation may deter a plaintiff’s lawyer from even taking a case. It demonstrates that the employer acted reasonably and will limit or mitigate the damages that an employee can collect (i.e. it’s not worth the plaintiff lawyer's time or money, if he (or she) takes the case on contingency, and (2) it shows the employee considering litigation against your company what a “fair” result might be if he or she decides to pursue litigation. That is, if the employee has “made their case” to the investigator and believes that the investigator is fair and neutral, then the conclusion that the investigator makes, even if it is not the employee’s desired result, will be the likely conclusion that a judge or jury will make after hearing all of the same facts. At this point, the employee will hopefully realize that a lawsuit will be expensive, time consuming and possibly, pointless.

The six ways that a plaintiff’s lawyer can undermine or “attack” an investigation are:

o The “Neutrality” Attack
o The “Time” Attack
o The “Fair & Thorough” Attack
o The “Taint Free” Attack
o The “Retaliation” Attack
o The “Burden to Remedy” Attack

The details of these attacks are the subject of a program which I will be presenting to the attendees of PIHRA District 15 on August 17, 2010, 11:30am-1:30pm. If you are interested in learning more about them in an entertaining format, please register and attend: Nonmembers are permitted to attend as well.

To demonstrate my gratitude to PIHRA in supporting Katz Consulting & Associates’ mission to proactively prevent lawsuits, I am also including downloadable Sample Documents that are helpful in conducting investigations of sexual harassment.
Sample Sexual Harassment Complaint Form*
Sample Investigation Questions for the Accused*
Sample Investigation Suspension with Pay for Accused*
Sample Investigation Conclusion and Recommendations*
*The samples are not intended to be "ready for use" by readers. In addition, they are not to be construed as legal advice. Rather, these forms are intended as samples and should be adapted to your particular company's needs. Although this work is copyrighted, you may freely use the content in creating or changing your own forms. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.

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