Tips for conducting investigations that employees and other stakeholders trusts. The leverage social media provides employees can be more problematic and immediate than a traditional administrative charge or even a lawsuit. A quick post can negatively impact employee morale, as well as damage recruitment and retention efforts.

1. May 2014 ©Lorene F. Schaefer, Esq.
Conducting Internal Investigations That
Are Trusted By Employees
Ever More Critical In The Era of Social Media
By Lorene F. Schaefer, Esq.
Managing Partner, Win-Win Resolve
Schaefer & Associates, LLC
www.WinWinResolve.com
Lorene F. Schaefer, Esq.
As more and more “digital natives” enter the
workforce and the legal trend to restrict employers’
abilities to silence workplace protests continues,
employers would be well served to think beyond
their traditional legal defenses and consider
research in the social psychology field of procedural
fairness.
We are in a time of radical change as social media takes the
prevalence of the Internet and 24-hour news cycle to dizzier and
dizzier heights for many corporations. In today’s world, the
instantaneous distribution of a blog, tweet or post is often given
the same weight as an established journalistic source and the New
York Times test is simply outdated. In this brave new world,
confidential documents and information can now be published
worldwide with just a few keystrokes and corporations are being
forced to rethink how they respond and self-regulate in a world
where involuntary transparency is becoming a new norm.
Employees and laymen are no longer limited to raising concerns
or even filing complaints of harassment, discrimination or
retaliation with the U.S. Equal Employment Opportunity,
Department of Labor, state agency or local courthouse to gain an
employer’s attention. Now, every employee has as much ability
Lorene Schaefer is the
managing partner of Win-Win
Resolve and has over 23-years of
legal experience, including 14-
years as in-house counsel at the
General Electric Company. She
also conducts workplace
investigations nationwide and is
a registered mediator.
Win-Win Resolve is a boutique
law firm focused exclusively on
ADR and the nationwide
administration of internal
dispute resolution programs and
compliance hotlines that are
trusted by employees.
Lorene’s book – Corporate
Counsel’s Guide to Internal
Investigations of Harassment,
Discrimination & Retaliation –
will be published this year by
the ABA.

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www.WinWinResolve.com ©Lorene F. Schaefer, Esq. 2014
to be heard nationally and internationally as
the President of the United States.
As a result, employees have at least some
incentive to air their workplace concerns on
social media platforms because it places them
on potentially equal footing with the employer.
Internet forums and review channels such as
www.Glassdoor.com, where anonymous posts
are published about employers, also provide a
low-risk environment to disclose unfavorable
information about employers. Other websites
promote union tactics. For example,
www.CoWorker.org provides free applications
to employees to create on-line petitions to
change their workplaces.
Simply put, social media provides a quick,
cheap and often anonymous means for
employees to pressure employers to change on
the employees’ time schedule.
The leverage social media provides employees
can be more problematic and immediate than a
traditional administrative charge or even a
lawsuit. A quick post can negatively impact
employee morale, as well as damage
recruitment and retention efforts.
Such disclosures also can disrupt the
workplace as internal and interpersonal
conflict can quickly escalate to a fever and
debilitating pitch. Depending on the substance
of a complaint, how widely communicated,
and whether it involves leadership or
management, a corporation’s brand and
reputation might also be impacted.
The 2014 media blitz involving the Clippers’
owner is a striking case in point. Within
hours of TMZ Sports posting an audio tape of
Donald Sterling making racists comments in
a private conversation with his girlfriend,
advertisers were cutting ties with the team,
current and former NBA players were calling for
the forced sale of the team in both social and
traditional media and the NBA had retained a law
firm to investigate. Just five days after the tape
was made public, the NBA fined Sterling $2.5
million and issued a lifetime ban prohibiting him
from attending NBA games or practices, stepping
foot inside any Clippers' facility, taking part in
business or personnel decisions, or having a role
in league activities such as attending NBA Board
of Governors meetings.
Laws Governing Social Media Policies Are A
Moving Target
Corporations have often implemented social
media policies with an eye to muzzling the
publication of employee complaints and criticisms
on social media platforms and the Internet. How
far these policies may go is a moving target.
In April 2014, for example, an ALJ refused to
follow the guidance of the NLRB’s General
Counsel on a company’s social media policy.
With case law continuing to develop, a corporate
policy on social media may easily be legal today
but not tomorrow. As such, frequent legal review
of such policies is not only wise, but also
necessary.
As more and more “digital natives” (individuals
who were born into the digital era) enter the
workforce and the legal trend to restrict
The leverage social media
provides employees can be
more problematic and
immediate than a
traditional administrative
charge or even a lawsuit.

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www.WinWinResolve.com ©Lorene F. Schaefer, Esq. 2014
employers’ abilities to silence workplace
protests continues, employers would be well
served to think beyond their traditional legal
defenses and consider research in the social
psychology field of procedural fairness.
4 Keys To Procedural Fairness
As a general matter, there are four key aspects
to whether a person will accept a decision
making process as procedurally fair:
! Voice – the ability to participate in the
review of the complaint by expressing
their viewpoint;
! Neutrality – consistently applied rules
or legal principles, unbiased
decision makers and a “transparency”
about how decisions are made;
! Respectful treatment – individuals are
treated with dignity and their rights are
protected;
! Trustworthy decision makers – decision
makers are benevolent, caring and
sincerely trying to help the parties to
the dispute – this trust is generally
garnered by listening to individuals and
by explaining the decisions being
made.
Lind, E.A. & Tyler, T.R. (1988). The Social
Psychology of Procedural Justice. NY: Plenum.
Researchers Prescribe Procedural Fairness
To Employers To Curb Whistleblower
Claims
The most recent study by the Ethics Resource
Center (an independent research organization
in Washington, D.C) tested the concept of
procedural fairness as it relates to employee calls to
employee hotlines. The study examined the hotline
reporting experience of 612 employees at 5 different
companies. It concluded that an investigation
process viewed as procedurally fair “substantially
increases the chances that reporting employees will
accept outcome.” Ethics Resource Center (2013)
Encouraging Employee Reporting Through Procedural
Justice. Arlington, VA: Ethics Resource Center.
The reporting employees were asked questions
intended to test the reporter’s perception of the
fairness of the procedures used in the process, the
fairness of the personal treatment of the reporter and
the reporter’s overall view of the fairness of the
report handling procedure. In order to evaluate the
impact of the investigation procedures used, the
researchers used a regression analysis to determine
the influence a favorable outcome had on the
reporter’s perception of procedural fairness.
Not surprisingly, reporting employees who viewed
the outcome of the investigation as favorable were
more likely to accept the outcome. What was
surprising though was that even in situations where
the reporting employee disagreed with the outcome
they were still statistically more likely to accept the
outcome if the reporter perceived the decision
making process as procedurally fair.
This finding is consistent with an earlier research
study by the Ethics Resource Center, which found
that employees want to resolve their concerns
internally with their employers and will do so if they
believe the process to be fair. According to the
study, 84% of whistleblowers who raised their
concern to a third-party outside of the company,
such as the government or an attorney, did so only
after their employer failed to address their concern
internally. Ethics Resource Center (2012) Inside the
Mind of a Whistleblower. Arlington, VA: Ethics
Resource Center.

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www.WinWinResolve.com ©Lorene F. Schaefer, Esq. 2014
As co-founder and president
of Workplace Investigations
Group, Lorene also
regularly provides training
to in-house counsel, risk
managers and human
resource professionals on all
aspects of workplace
investigations.
This training is designed to
cross train in-house counsel
and to enhance the skills of
Risk Management and HR
professionals. It is very
hands-on with mock witness
interviews, report writing,
and more.
In addition to regularly
scheduled classes in
Atlanta, this training can
also be customized and
delivered on-site at
organizations nationwide.
For more information, visit
www.Internal-
Investigations.com or email
Alex@Internal-
6 Tips to Increase Employee Trust of Internal Investigations
In light of this research, here are a few communication strategies
and practical “how to” recommendations companies can use to
increase the likelihood employees will first use internal reporting
tools and that the reporting employee will accept the results of the
company’s internal investigation and refrain from raising the
concern to third-parties on social media or to the government or
adversarial counsel:
! Humanize the reporting experience. Selection of the person(s)
who will receive employee concerns is critical.
Approachability and accessibility are key components of
procedural fairness, particularly when an employer may
already be viewed as intimidating or formidable.
Intake personnel should be marketed with professional
pictures and bios, including languages spoken, that present
them as trustworthy and engaging.
! Explain what you’re doing and why. For many employees,
raising a concern may be a traumatic event.
The jargon of procedures can intimidate, confuse, and
overwhelm employees or heighten fears of retaliation,
pushing employees into the arms of government agents,
union stewards, and the Plaintiffs Bar. Know that your
competition uses simple, explanatory terms that are inviting.
So should you. Further, reassure reporting employees that
retaliation is prohibited for raising a concern in good faith.
! Manage expectations. If an investigation is warranted, explain
how the investigator will be selected and the anticipated
timing of the investigation. Establish a process that provides
the reporting employee periodic “updates” that assures them
that their concern is receiving appropriate attention, even
though details may not be part of these updates.
! Carefully select a well-trained and neutral investigator with
strong communication skills. Research shows that the
trustworthiness of the investigator, as perceived by the
reporter, is critical to whether the reporter believed the
Investigation Training

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www.WinWinResolve.com ©Lorene F. Schaefer, Esq. 2014
the investigation was procedurally fair.
When communicating with witnesses, the investigator must establish a professional
degree of rapport through verbal and non-verbal communication, a relevant set of
questions, and appropriate responses to witness reactions such that competence of
ability is demonstrated, respectfully.
! Close the loop with the reporting employee, accused and any witnesses
interviewed. “Closing the loop” with everyone who participated in the process is a
critical step. Closing the loop means that participants are thanked for their
participation, informed that the investigation concluded, and assured that appropriate
measures were taken based on the results (the degree of detail may vary based on each
situation and confidentiality concerns). This debrief is a marketing effort directed at
company employees to reinforce the credibility of the process, assure employees that
policies are followed consistently, and demonstrate that concerns are taken seriously
without the need for involving external resources outside the company.
! “Market” your reporting and compliance programs. Develop a communication plan and
consider periodically sharing high level and appropriately sanitized summaries of
compliance investigations and/or the types of numbers of reports being received that is
appropriate for shareholders, employees, and executive leadership.