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Investigations

Workplace Investigations

The importance of acting in response to workplace complaints that may invoke discrimination or retaliation protection cannot be underestimated. Eileen has performed a wide variety of thorough, balanced and objective investigations in response to workplace complaints. An early and complete investigation can address workplace concerns before litigation occurs. When corrective action is taken in response to conduct prohibited by employer policies, or by anti-discrimination and anti-retaliation laws, an employer may have an affirmative defense in a subsequent litigation.

There are two kinds of workplace investigations. First is a fact finding investigation, where the goal is to clarify facts particularly when the facts are disputed. The second type of investigation is designed to clarify the facts and provide employers with advice and input on how to address problematic workplace issues. Either investigative format must be sufficient in scope to address the underlying issues and the full extent of the employee's complaint. Investigative reports can be prepared as an attorney client confidential document, if advisory in nature, or can be shared with the employee in implementing any corrective action or discipline.

Investigator's conclusions must also be supportable if challenged in court or through a union grievance procedure. If the report is used to support a disciplinary decision, the evidence collected must meet the "just cause" standard, found in union contracts. Eileen's investigative work has required her to testify in a variety of hearings. Her findings have ultimately been adopted by the hearing officers and the discipline was upheld.

Having worked with a number of public entities as an investigator, it is also important to understand the impact of publicity. Eileen works hard to maintain confidentiality even in highly public workplace investigations.

She created a training program: "Workplace Investigation Best Practices'. This is a two day session designed to train workplace investigators on issues dealing with the scope of the investigation, preparing an investigative plan, identifying witnesses and evidence, conducting an interview and providing feedback during the investigation. The second day of training focuses on effective report writing, plus post investigation topics, including expert testimony. She has also been asked to assist in creating a program to certify workplace investigators.

Eileen's prior investigations have included issues such as discrimination, disparate treatment, hostile work environment, whistleblower protections, retaliation, workplace violence, employee misconduct, ethical violations and embezzlement.

Philosophy

Nearly 80% of litigated cases are resolved or dismissed without a trial. Litigation can be very costly and the outcome unpredictable. Mediators have played a significant role in providing litigants with an alternative to the uncertainty of litigation. Eileen completed an extensive course on interest based mediation through the University of Washington in 1996 and in 2008. She has also completed mediation training for the EEOC. She has served as a volunteer for mediation in small claims court and is seeking her certification to be a certified mediator in Federal Court cases. Based on her 30 years as a litigator, she has acquired a keen understanding of how mediation can be a cost effective alternative to litigation. However, some of the existing methods of mediation are not always effective. Here is why Eileen's approach to dispute resolution is unique. In a typical mediation, the mediator asks the parties to submit written materials prior to a joint mediation date. These materials can be shared or be confidential, depending on each party's preference. This is typically the only introduction to the case the mediator has. The mediator typically brings their own approach to the mediation process. Sometimes that approach is effective and sometimes it is not. Eileen prefers to take a different approach to mediation. She asks the parties to submit confidential answers to a survey before mediation begins. This eliminates the expense to the parties of preparing what is essentially a duplicate of the advocacy briefs the lawyers typically prepare for the court. The parties are free to submit any information they feel may be helpful to the mediation process, including court documents, or key evidence. Then Eileen contacts the parties or their attorney to get helpful information about how mediation will be most effective. For example, she asks the parties if it would it be helpful to meet separately, before conducting a joint session? Has there have been specific hurdles to resolving the case? She seeks out candid responses, not the type of advocacy typically reserved for the courts. Since all responses can remain confidential, this should not pose a hurdle in subsequent litigation. She also asks if evaluative mediation would be helpful to the parties, particularly if a legal issue creates some uncertainty about the claims or likely outcome. Often standard "shuttle mediation" (simply passing monetary offers back and forth) is not the best method for resolving unique or complex claims. If a certain approach to the mediation will be more effective, she will seek out input from the participants beforehand. Mediation fees must also be reasonable to help the parties save costs over litigation. AIM Services, Inc. offers several alternatives in mediation fees, all of which provide litigants with a reasonable cost effective alternative to standard mediation fees.

Investigation Costs

Pre-litigation Mediation Services

Pre-litigation or workplace mediation services are billed at Eileen's standard hourly rates. Travel expenses and incidental costs are billed at actual cost, and discussed in the firm's fee agreement.

Mediation fees for litigation include:

Half day services for $500 per side. If there is more than one defendant or multiple plaintiffs, the fee is $400 per party. Pre-mediation services are included in these rates. Full day services are $1000 per side. If there is more than one defendant or multiple plaintiffs, the fee is $800 per party. Pre-mediation services are included in these rates. The parties are responsible for sharing in the cost of the mediator's actual expenses, which can include travel expenses, meals, mileage (at standard IRS rates), copy costs, mailing costs or other incidental expenses. Cancellations will be at no charge to the parties if arranged 14 days prior to a scheduled mediation. Otherwise cancellation fees are $200 per party, unless cancellation is due to a medical emergency or weather conditions. All parties to a mediation must sign a mediation agreement prior to finalizing AIM's services.

© 2011 Arbitration, Investigation & Mediation Services, PLLC. All rights reserved.
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