What does an expert witness do in reviewing the employerâ€™s handling of a workforce complaint?
Clients need to know what an expert witness does in the review of an employerâ€™s handling of a workforce complaint. The complaint could be regarding discrimination, sexual harassment, misconduct, or retaliation, any of which could potentially lead to the accusedâ€™s termination. An expert who has the experience of conducting employment investigations will be able to assess if the employerâ€™s handling of the workforce complaint, actions or omissions was satisfactory or unsatisfactory. Moreover, the review of reports, evidence, documents and asking the right questions is essential by the expert.
This checklist outlines the methodology I use from beginning to end to reach an expert witness opinion and is useful for litigators, plaintiffs, defendants, and risk management.
1. Conduct the initial consultation with client.
a. Client provides a summary of what happened and what they would like the expert to review.
2. Receive and review all employer reports on the complaint(s).
a. Generally, includes the initial complaint from Human Resources, the completed investigative report that contains statements from the victim, witnesses, accused, and investigatorâ€™s notes. The who, what, when, where, how, and why should be in the investigative report.
b. Finding of Fact
ď‚§ Generally, the allegation results in a finding of sustained, not sustained, or unfounded with compelling reasons for the decision.
c. Initiation of Pre-disciplinary Process (if finding of fact is sustained).
d. Response to Pre-disciplinary Action Letter by the accused employee.
e. Termination of Employment Letter (if employer is not influenced by employeeâ€™s response).
3. Receive and review all legal court documents filed by the plaintiff/defendant attorney(s).
4. Review all applicable federal and state laws.
5. Review all applicable personnel rules, policies, and procedures.
6. Receive and review evidence. This includes:
a. Emails, writings, text messages, voicemail, and all social media messages.
b. Pictures of any physical injuries, property damage and where the incident occurred. Any other pictures that are relevant to showing guilt or innocence should be produced.
c. Company and government property that is stolen, recovered, damaged, or relevant to the case.
d. Other evidence includes any object or material that adds relevancy of the incident.
7. Receive and review all copies of digital/video recordings and transcripts.
a. This includes interviews and depositions of the victim, witnesses, investigator, management and accused.
The following questions will have a yes or no response from the expertâ€™s review. If the review response detects an error or omission, it will be noted and discussed by the expert. The questions are #8 through #15.
8. Did the employer preserve and collect all evidence necessary for a complete investigation?
9. Did the employer have a reasonable methodology to identify witnesses and gather relevant information?
10. Did the employer follow investigative standards in conducting the interviews?
11. Was there any bias detected in this investigation?
12. Did the employerâ€™s investigator commit any errors or omissions in this investigation that are not asked in this checklist?
13. Were the findings of fact by the employer reasonably supported by the information that was obtained? Did they meet the preponderance criteria?
14. Were all applicable policies and practices as to discipline followed?
15. Was the discipline imposed justified and reasonable?
a. Was the discipline consistent with past practices?
16. Does the client request a written report on the expert witness opinion findings?
a. This is discussed and agreed upon in the initial consultation and indicated in the agreement of services contract between the expert and client.