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allegations to the attention of all relevant personnel ‘Documentation is the
within one business day. It’s sufficient to simply
send an email to management with the details of
the allegations. foundation of any good
■ Appoint an investigator. When an allegation has
allegations. A firm cannot allow emotions and ego defense of an employment
been made, some may feel personally targeted by the

to interfere with the handling of allegations. Instead,
appoint a designated human resources employee or practices claim.’
a third-party investigator or attorney experienced
and trained in handling investigations related to
Brandon Saxon, J.D., partner and chair of the employment
discrimination, harassment, and/or retaliation. En-
sure that the individual has no reporting or personal practice group at the law firm Gordon & Rees
relationship to the complainant or the source of the
allegations.
■ Cooperate and produce all necessary docu- ■ Maintain the utmost professional conduct,
mentation. Relevant documents that relate to the especially leading up to a disciplinary action or
allegations may include, but are not limited to, all termination. Any and all conversations pertaining
communication relating to the employee, testimony to an employee’s termination have the potential
from the employee, and prior incidences of disci- to be discoverable, and it never benefits the firm
pline and similar documents from others named in when there are unnecessary comments about the
the complaint. employee.
■ Communicate with management and those ■ Avoid acting in haste. While it may be attractive
involved with the investigation, keeping it to terminate an employee as soon as possible,
internal until it is completed. Once the investiga- you must consider the potential cost of doing
tor has reached their conclusions, they will recom- so. There is almost never a reason to rush the
mend a response and next steps. It is imperative to termination of what may be considered a trouble-
follow these recommendations, as the investigator is some employee.
impartial and has no stake in the outcome. ■ Engage employment counsel that is familiar
■ Monitor the progress of the response and con- with the laws and regulations in the applicable
tinuously follow up with the employee. It is in jurisdiction(s) to help create employee hand-
the best interest of the firm to keep the complainant books, policies, and procedures.
comfortable and informed throughout the process, ■ Consider consulting with employment counsel
especially if they remain in your employ. Doing so prior to any termination.
helps you gauge their reaction how they feel about
the firm’s response to their complaint, thus enabling Laura Lapidus, Esq., is a risk control director at CNA.
the firm to better anticipate, and prepare for, what For more information about this article, please contact
may come next. specialtyriskcontrol@cna.com. Brandon Saxon is a partner
and chair of the employment practice group in the San
What practices can firms implement to assist in Diego office of Gordon & Rees and can be reached at
mitigating employment practices liability risk? bsaxon@grsm.com. ■
Saxon: There are many things that a firm can do to
help protect itself from many of the employment claims Continental Casualty Company, one of the CNA insurance companies, is the
underwriter of the AICPA Professional Liability Insurance Program. Aon
we commonly see, including the following:
Insurance Services, the National Program Administrator for the AICPA Profes-
■ Establish clear internal handling policies that sional Liability Program, is available at 800-221-3023 or visit cpai.com.
guide employees and management. This article provides information, rather than advice or opinion. It is ac-
■ Proactively train all employees. curate to the best of the author’s knowledge as of the article date. This article should
not be viewed as a substitute for recommendations of a retained professional.
■ Remember that a workplace is an amalgamation
Such consultation is recommended in applying this material in any particular
of many different kinds of people with diverse factual situations.
experiences. Foster a positive and productive Examples are for illustrative purposes only and not intended to establish
relationship by encouraging open lines of com- any standards of care, serve as legal advice, or acknowledge any given factual
situation is covered under any CNA insurance policy. The relevant insurance
munication to best serve everyone involved.
policy provides actual terms, coverages, amounts, conditions, and exclusions for an
■ Document employee interactions. This is key, as insured. All products and services may not be available in all states and may be
set forth above. subject to change without notice.
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