EEOC’s Arguments to Supreme Court Antithesis of Transparency and Open Government

EEOC TrustOn January 13, 2015, the United States Supreme Court heard oral arguments in which the Equal Employment Opportunity Commission (“EEOC”) made arguments that fly in the face of President Obama’s call for transparency and open government.

In the case, Mach Mining v. Equal Employment Opportunity Commission, the EEOC acknowledged its statutory duty to “attempt to resolve” complaints where “reasonable cause” has been found “by informal methods of conference, conciliation and persuasion,” but argued that the EEOC’s compliance with this duty is not subject to judicial scrutiny.

Essentially, the EEOC seemed to be arguing

Trust us. We’re the government. We’re here to help.

Not surprisingly, that argument was not persuasive to several of the justices. Chief Justice Roberts, for example, commented during the oral argument that, “I am very troubled by the idea that the government can do something and we can’t even look at whether they’ve complied with the law.”

The issue of whether the EEOC’s conciliation efforts are subject to judicial scrutiny has been percolating in the lower courts for years. It seems safe to say that private employers and the government have spent millions of dollars debating this issue. In several cases, the EEOC has been sanctioned for failing to comply with its duty to conciliate.

The defense bar argues that the EEOC, at times, abuses its authority by failing to engage in good faith efforts to conciliate before filing lawsuits against employers and that only judicial scrutiny can serve as a check to this abuse of power. The EEOC argues that its duty to conciliate is one of agency discretion entrusted to it by Congress and that there is not a specific conciliation process in place and, as such, its conciliation efforts should not be subject judicial scrutiny.

What is the EEOC hiding? Why is it afraid to put its conciliation process up for review?

As Justice Scalia commented during oral argument, the remedy for the lack of standards is in the EEOC’s hands:

But the remedy for that is ­­ is at your hands.  As the other side said, you could issue rules which say, this is an informal process, but what it consists of is, number one, we give you notice of what the  -what the offense is; we sit down with you to discuss settlement of that; number three, we make apparent to you what our offer is for settling the matter, and whatever other rudiments of conciliation the agency believes in.

What’s wrong with that?

Indeed, what is wrong with us requiring that our governmental agencies be open and transparent in their operating processes?

The government offered three reasons for its failure to issue the regulations – all of which fall flat, especially in light of President Obama’s Open Government Directive:

  1. the EEOC “needs flexibility in these processes;”
  2. the EEOC has “its own training procedures about good ways to do conciliation and the steps to be taken;” and
  3. to issue such regulations assumes that there would be some type of judicial review of whether the EEOC complied with the regulations.

It is Time for Transparency of Process.

I say it is time to stop the debate and for the leadership at the EEOC to step up and lead. It is time for the agency to comply with President Obama’s open government directive. For the EEOC to continue to refuse to issue these much-needed regulations is a flagrant violation of Obama’s call for transparency and open government. It is also simply poor leadership.

Call to EEOC to Start Rulemaking Process

In March of 2013, I presented written testimony to the EEOC urging it to implement a pilot program incorporating a structured ADR process into the EEOC’s post-cause conciliation process. At the time, I suggested that implementing such a program would assist the EEOC in recognizing “the need to conserve its limited economic resources while at the same time staying focused on continuing its mission to stop and remedy unlawful employment discrimination so that the nation can achieve our ultimate vision of justice and equality in the workplace.”

I still think that incorporating a structured ADR process into the EEOC’s post-cause conciliation process would benefit both the agency and assist it in better meeting its mission.

Regardless, however, of the specifics of any conciliation process, the current refusal of the EEOC to issue standards must not continue.

I call on the leaders at the EEOC to comply with the “Open Government Directive” issued on December 8, 2009. To do so, the EEOC needs to take “specific actions to implement the principles of transparency, participation collaboration” as regards the process that the EEOC will follow in complying with its obligation to resolve complaints through informal efforts of conference, conciliation and persuasion.

HR Magazine: Being a Super Sleuth

HR MagazineThanks to HR Magazine writer, Dori Meinert, for extensively quoting me in her article “How to Conduct a Workplace Investigation” in the December 2014 edition of HR Magazine.  

Ms. Meinert’s article provides great insights for HR professionals and others responsible for investigating complaints of workplace misconduct.  She also provides prudent suggestions for HR and operational managers on how to avoid costly mistakes in responding to internal complaints of workplace misconduct

Click here to read the full article in HR Magazine titled – “How to Conduct a Workplace Investigation.”

About the Author: Lorene F. Schaefer, Esq. specializes in conducting prompt, impartial and thorough investigations. As President of Workplace Investigations Group, she also regularly delivers investigation training to employees responsible for Title IX compliance and investigation. She is also the author of Corporate Counsel’s Guide to Internal Investigations of Harassment, Discrimination & Retaliation, which will be published in 2015 by the ABA.

Workplace Compliance: Three New Year’s Resolutions You Should Start Today

Blog New YearWith year end just around the corner, many business leaders are, no doubt, looking forward to spending some quality time with family. This is also the traditional time of year that leaders take the time to reflect on the past year and re-prioritize their objectives with a goal of kicking off the new year with renewed vigor and a clear mission.

Workplace compliance and compliance leadership is no exception.

Navigating the ever changing legal landscape of workplace compliance is a constant challenge. In today’s world, employee whistleblowers have more protection than they’ve ever had and there has been a surge of government investigations and retaliation lawsuits by employees.

We are in an era when federal and state governments are making it easier and easier for employees to make whistleblower claims via national and state hotlines. Governmental agencies and plaintiff’s attorneys are wooing employees with promises of large rewards to employees who report alleged fraud or other wrongdoing.

The good news for employers is that research shows that despite these new developments, employees prefer to resolve their concerns internally. Research by the nonprofit Ethics Resource Center found that 84% of whistleblowers that reported a compliance concern outside their company first reported the concern internally. It was only after the employer failed to address the concern satisfactorily that the employee reported the concern to a third-party outside the company.

Against that backdrop, I offer the following three suggested steps for business leaders to take now. Get started now on these resolutions to mitigate the risk of a compliance miss or distraction in 2015.

3 resolutions

In remarks earlier this year before the International Chamber of Commerce and the U.S.Council for International Business, a Deputy Assistant Attorney General for the Department of Justice commented that “[c]ompliance is a culture, not just as policy.”


Creating a culture of workplace compliance is not done overnight. It takes careful planning, sufficient resources and a committed leadership team.

As the Department of Justice has recognized, there is no one size fits all for an effective compliance program. An effective compliance program will be tailored to the specific concerns, industry concerns and company culture.

With that said, here are three things leaders everywhere can do now to help create and maintain a culture of compliance within your organization.

Resolution 1

Effective compliance programs ensure not only that they have well-crafted policies but also that those policies are well-communicated. Behind the most effective compliance programs are documented communication plans that leaders use to ensure your compliance message is heard.

One of the cornerstones of an effective communication plan is ensure that employees know how to raise compliance concerns or ask compliance questions.

Hence, my first recommended resolution.

Intuitively, we know that repetition is the basis of any learning process, and it’s no different for workplace compliance. If business leaders want to increase the likelihood that their employees will report compliance concerns internally, they need to communicate that message repeatedly throughout the year with some frequency. The message should include a reminder of company policies and expectations for compliance as well as instructions on how to raise compliance concerns or ask compliance questions.

Many experts in the field suggest taking a marketing approach to compliance messaging. Click here to see a template shared by the consulting company Compliance Wave for creating a compliance communication plan.

Resolution 2

In workplace compliance, employee trust is critical. If employees trust your investigation process, they are statistically more likely to report their compliance concerns internally to you instead of to third-parties on social media or to a governmental agency or plaintiff’s attorney. If the reporting employee trusts the process you use to resolve compliance concerns, research also shows that the employee is also more likely to accept the results of the investigation, even if the employee disagrees substantively with the outcome.

I wrote an article earlier this year that contained six tips for increasing employee trust of internal investigations. That article included 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 party will accept the results of the company’s internal investigation and refrain from raising the concern to an external third-party.

Resolution 3

Click here to read those tips.

Regardless of how well operated an organization is, there will, inevitably, come a time when a compliance concern is raised that needs to be investigated. Planning for that day is absolutely critical.

Ask yourself: Who do you have within your organization who is well-trained and ready to conduct the necessary prompt, impartial and thorough investigation into an allegation of workplace misconduct or compliance concern?

A recent article in HR Magazine highlighted the risks associated with conducting internal workplace investigations. As Faith Laframboise, North American manager of HR for Spirol, a fastener manufacturer based in Danielson, Conn. stated in the article, “I don’t know any other business area where things can change so dramatically in a fairly short period of time as far as legislation or best practice or new research.” Ms. Laframboise recalled the trepidation she felt conducting her first workplace investigation: “It was a challenging and quite intimidating thing to have to handle for the first few times.” Despite these challenges, in today’s world, being able to conduct an effective internal investigation that will withstand legal scrutiny is a core competency for HR professionals.

The good news is that there is excellent training available for HR managers or others who may be tasked with conducting an internal workplace investigation. One source for this type of training is Workplace Investigations Group, which offers open enrollment training courses as well as customized, on-site training programs for larger organizations.

Lorene Schaefer, Esq. is President of Win-Win Resolve, a company founded by employment attorneys to help businesses solve workplace conflict and compliance concerns at the lowest and earliest levels possible. Its consulting services focus on the following six areas: Employee Hotlines, Workplace Investigations, Workplace Mediation, M&A Integration Teams & Services, Personnel Protocol Audits & Services.


FSU: Speedy Trials and Cutting Your Losses

FSUIn response to very public investigations by the Office of Civil Rights at the Department of Education, colleges and universities have been reviewing and revising their Title IX policies and protocols.  Title IX compliance, in the context of allegations of student sexual misconduct, is tough.

Just how tough it is to get right is exemplified by the current standoff at Harvard between its law professors and administration.

In response to Harvard’s issuance of a new sexual misconduct policy, 28 law professors signed a letter claiming Harvard’s new “procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”  The letter was published in The Boston Globe on Wednesday.

A little further south, another Title IX drama is playing out real time at FSU as FSU struggles through how to handle the sexual assault allegations that have been made against star football player Jameis Winston.

Here today to share her insights and commentary about the FSU matter is guest blogger Jennifer Keaton, Esq.

FSU: Speedy Trials and Cutting Your Losses

by Guest Blogger Jennifer Keaton, Esq.

Is Jameis Winston (and, frankly, the victim) entitled to a speedy trial as it relates to the charges of sexual assault?

Under the U.S. Constitution, individuals charged with crimes do have a right to a speedy trial. Of interest in Winston’s case is that it is FSU (and not Tallahassee law enforcement) that is getting grilled about how fast it is moving on these allegations as it pertains to Student Winston (as opposed to Citizen Winston).

Here’s the rub: Colleges and Universities (and even with some employers in a different context) have internal procedures and systems in place that help them properly and fairly monitor their population’s interactions. Such systems are often less formal that the judicial systems….and they’re supposed to be faster than the judicial system.

Here, FSU has arguably set itself up for harsh scrutiny and, if they get this wrong, they may face liability and create a catalyst for the federal government to prescribe a system for them (and everyone else). The obvious pot-shot is that FSU is not moving fast enough (and perhaps hasn’t moved fast enough) because of an underlying desire to keep Winston through to the end of the football season (or until it is clear that FSU’s Football team is not going to be a real contender for a title of some sort).

At this point, the lawyers have taken over the school’s process and, because the system was created by well-intentioned people and not people thinking about how the system could be played like a fiddle by lawyers, FSU is basically assured that Winston will complete the Season. Indeed, despite the upcoming student judiciary hearing, ESPN is reporting that Winston is expected to play for No. 2 Seminoles in Saturday’s games against No. 5 Notre Dame.  ESPN is also reporting that Winston will proceed with the disciplinary hearing although Winston’s attorney continues to criticize the process FSU has put in place.

Suddenly the legitimacy of FSU’s system is in the hands of a hearing officer who is likely to be a retired Florida supreme court judge. Sounds impressive, doesn’t it?

But the reality is that no one has stopped to consider whether a retired appellate court judge really has what it takes to preside over this proceeding, much less make fast decisions (anyone got the average response time on Florida supreme court decisions?), or manage (over)zealous attorneys who have their own agendas?

Sadly, what is more likely to happen here is that Winston is going to engage in a new incident of misconduct that will get him expelled outright and solve this problem in a decidedly different way. All of this gnashing of teeth will be for naught (at least among the lawyers).

And, then, Winston will only be concerned with a speedy criminal trial, for which Florida taxpayers will still be on the hook for the costs. FSU: It’s Time to Cut Your Losses.

About the Author:  Jennifer Keaton is Vice-President of Workplace Investigations Group. She has represented large and small employers in both state and federal forums for over a decade following a teaching career. Jennifer has conducted over a hundred investigations. Her ability establish trust and confidence in the integrity of the investigative process has led to the successful resolution of many situations and assisted in avoiding costly litigation.  She used her combined experience as a teacher and experienced employment attorney to develop Workplace Investigations Group’s training programs, including Title IX training for employees responsible for Title IX compliance and investigations.



Halloween at the Employment Law Carnival

halloween employment law blogThere is some great stuff in this month’s edition of the Employment Law Blog Carnival.  It’s hosted by Mark Toth over at ManpowerGroup.

According to Mark, ‘[i]t’s truly terrifying out there from an employment law perspective. Everybody’s suing everyone for everything. Class actions are exploding. The EEOC, NLRB, OFCCP, OSHA and a host of other acronym-ious agencies are coming after more and more (and more) employers. And new laws are popping up everywhere — California alone just passed twenty-one new statutes that are giving employers heart palpitations.”

But never fear.  Mark has designed this month’s edition is to “reduce your terror level by offering helpful hints from some of the brightest stars in the employment law universe.”

So head on over to read Mark’s Halloween Edition of the Employment Law Blog Carnival.


Everyone’s Known About Rape Allegations Against FSU’s Winston, But Only “Now” Does FSU Investigate?

Florida State University Title IXYesterday, FSU posted an “An open letter to the Florida State University community” on its website in response to what it called “misinformation.”  In its Open Letter, FSU acknowledges that FSU Campus Police knew of the sexual assault allegations against FSU student and football player Jameis Winston (although they don’t mention Winston by name) in December 2012.  FSU also acknowledges that the FSU Athletics Department was notified of the allegations in January 13, 2013.  Amazingly, FSU then attempts to defend its failure for 11+ months to initiate a Title IX investigation by stating that no one told its Title IX officials until November 2013 of the allegations.

Perhaps, not coincidentally, in January 2014, Jameis Winston led the Seminoles to a victory in the 2014 BCS National Championship Game and an undefeated 14–0 football season and the Seminoles coach got a $550,000 bonus.

FSU is, I guess, hoping that readers of its Open Letter will somehow think that FSU had no duty to conduct an independent Title XI investigation until November 2013 when its Title XI Officials learned of the allegations.


Title XI Obligation to Conduct Prompt Investigations into Allegations of Sexual Violence by Students

Although Title IX of the Education Amendments of 1972 (Title IX) is best known for requiring gender equity in collegiate athletics, it also requires a school to take immediate and appropriate steps to investigate all allegations of sexual violence involving students.  Most significantly, that duty to investigation exists separate and apart from any criminal investigation conducted by local police.  Guidance issued by the Department of Education clearly states, “a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct.”

When is a Duty to Investigate Triggered Under Title XI?

Under guidance issued by the Department of Education’s Office of Civil Rights, a school’s obligation to conduct a prompt investigation is triggered when a “responsible employee” of the school knew or reasonably should have known about allegations of student sexual violence.

Who is a “responsible employee” under Title IX?

In April 2014, the Department of Education Office of Civil Rights provided guidance to schools on this very question.  In reading the guidance, it seems pretty clear that the Office of Civil Rights would view employees in the Athletic Department and Campus Police Department as “responsible employees.”

Here is relevant excerpt from April 2014 Office of Civil Rights guidance:

“According to OCR’s 2001 Guidance, a responsible employee includes any employee: who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty.

A school must make clear to all of its employees and students which staff members are responsible employees so that students can make informed decisions about whether to disclose information to those employees. A school must also inform all employees of their own reporting responsibilities and the importance of informing complainants of: the reporting obligations of responsible employees; complainants’ option to request confidentiality and available confidential advocacy, counseling, or other support services; and complainants’ right to file a Title IX complaint with the school and to report a crime to campus or local law enforcement.

Whether an employee is a responsible employee will vary depending on factors such as the age and education level of the student, the type of position held by the employee, and consideration of both formal and informal school practices and procedures. For example, while it may be reasonable for an elementary school student to believe that a custodial staff member or cafeteria worker has the authority or responsibility to address student misconduct, it is less reasonable for a college student to believe that a custodial staff member or dining hall employee has this same authority.”

Possible for FSU to be in Violation of Title IX but Not Liable in Private Lawsuit

It’s also worth noting that the Office of Civil Rights distinguished between when a school may be liable for money damages in a private lawsuit vs. when its duty to conduct a prompt investigation is triggered.  Here’s what they said in the footnote:

“The Supreme Court held that a school will only be liable for money damages in a private lawsuit where there is actual notice to a school official with the authority to address the alleged discrimination and take corrective action.  Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 290 (1998), and Davis, 524 U.S. at 642. The concept of a “responsible employee” under OCR’s guidance for administrative enforcement of Title IX is broader.”

Given that the alleged sexual assault victim has hired an attorney it seems likely that FSU may have found itself in the unenviable position of serving as a test case of exactly that point.  It seems clear that the Department of Education will find FSU’s failure begin an internal investigation for 11+ months after being on notice of the allegations was a violation of Title IX.  It remains to be seen though whether that failure will also subject FSU to civil liability in a private lawsuit.

About the Author:  Lorene F. Schaefer, Esq. specializes in conducting prompt,impartial and thorough investigations. As President of Workplace Investigations Group, she also regularly delivers investigation training to employees responsible for Title IX compliance and investigation.   She is also the author of Corporate Counsel’s Guide to Internal Investigations of Harassment, Discrimination & Retaliation, which will be published in 2015 by the ABA.

Workplace Investigations: Ravens Ray Rice Termination Demonstrates Importance of Considering Video Camera Surveillance

Win-Win HRJust 12 hours after a video tape of Ravens Ray Rice beating his now wife on February 15, 2014 in a hotel in Atlantic City was published by TMZ, the Ravens had terminated his contract and the NFL had indefinitely suspended him from playing for any NFL team. The video is taken from the surveillance camera that appears to have been mounted inside the elevator in which Rice and his now wife were riding.

The NFL had previously suspended Rice for two regular season games based on the incident, which had been widely publicized. The only new development since the NFL’s decision to suspend him for two games appears to be the existence of video. The NFL claims it did not have the video in its possession at the time it made the decision to suspend him for two days, but some commentators are questioning how that could be.

Implications for Employers

Given the rapid rate of growth of video monitoring of activities in public areas, businesses and commercial buildings, employers faced with the need to conduct an impartial, prompt and thorough internal investigation into an allegations of harassment or other workplace misconduct need to always consider the possibility of a relevant video tape existing somewhere. According to a recent report from Transparency Market Research, the video surveillance market is expected to reach $42.81 billion by 2019.

And, that’s not even counting the number of people walking around with video cameras on their cell phones.


workplace investigations groupWorkplace Investigation Group trains in-house counsel, risk managers, and human resources professionals on all aspects of workplace investigations into alleged bullying, discrimination, harassment and retaliation.  Click here for information on upcoming training that is available in the coming months in Atlanta, GA, Washington, D.C., Metro-New York City, Hartford, CT, Scottsdale, AZ, Las Vegas, NV, Denver, CO, Cincinnati, OH, and Chicago, IL.



Millennials Increasingly Using Social Media to Challenge Harassment and Discrimination

The Times They are a-changin Fifty-five percent of millennials — today’s 80 million-strong generation of 18 to 34 year olds — say a prospective employer’s online reputation matters as much as the job it offers, according to a survey by Spherion Staffing.

As someone who wrote her first law school paper on an electric typewriter, I continue to be struck by the magnitude of change that social media has brought to the business world. In the not too distant past, employees who weren’t satisfied with how their employer responded to a complaint of harassment or discrimination had few options. They could go down to their local office of the Equal Employment Opportunity Commission and file a charge, hire a lawyer to bring a claim, or try to find a journalist to write an article about their plight.

Oh how times have changed.

A post this week on brought yet another example of just how much times have changed. For those who don’t know what Gawker is, it is a blog founded in 2003 and the flagship blog for Gawker Media. According to the Washington Post, Gawker Media has more readers than the top-circulation U.S. magazines

The blog post was authored by “Jane Doe” and is titled “Twenty Days of Harassments and Racism as an American Apparel Employee.” It was filed under “shitty jobs” on the blog. As I write this blog, the post has been shared on Facebook 8.2K times and has had 754 comments.

The blog post purports to be based on a diary of a recent college graduate who took a job at American Apparel because she “was drawn to the company” because she tries “to make ethical consumer decisions” and she “appreciated that American Apparel pays their garment workers well and doesn’t use sweatshops.” In the blog post she does note that although she was “very wary of the sexual harassment allegations against the company’s former CEO, Dov Charney” she felt that “[b]ecause he had recently been asked to step down from his position, it seemed like the company was making progress.”

The author writes that “[i]n retrospect, I should’ve been more wary of a company with a history of outrageous unprofessionalism. What I hoped would be a low-stress, part-time job turned out to be a major source of anxiety and a cesspool of harassment. The incompetent, appallingly racist management and belittling of employees were commonplace, and created a hostile work environment.”

Click here to read the full blog post.

Implications for Business Leaders

The magnitude of the changes underway means that a fundamental rethink of how employers respond to internal complaints of workplace misconduct like harassment and discrimination is needed. The question for business leaders in this brave new world is – do your employees trust your internal complaint process? Do they trust that their manager and HR professionals will conduct an impartial and fair investigation into their complaints?

Studies show that employee trust is key to getting your employees to raise their complaints internally vs. going public on social media and becoming a whistleblower.

In this era of increasing regulation and whistleblower protections, almost all business leaders recognize the need to have robust complaint mechanisms in place for employee concerns.  Business leaders though who want to most effectively compete for and retain millennial talent are taking it a step further and working to ensure they have a well-developed process in place that is trusted by employees for resolving the employee concerns received.


workplace investigations groupWorkplace Investigation Group trains in-house counsel, risk managers, and human resources professionals on all aspects of workplace investigations into alleged bullying, discrimination, harassment and retaliation.  Click here for information on upcoming training that is available in the coming months in Atlanta, GA, Washington, D.C., Metro-New York City, Hartford, CT, Scottsdale, AZ, Las Vegas, NV, Denver, CO, Cincinnati, OH, and Chicago, IL.


Harassment Investigations: New NLRB Decision Complicates Them Even More

NLRB is Watching Non-Union EmployersA recent decision by the National Labor Relations Board (“NLRB”)  has complicated even further the already challenging world of conducting investigations into allegations of workplace harassment.  In light of this new ruling, it’s ever more important employers use well-trained investigators and give careful consideration to how an investigation is structured and witnesses are interviewed.

NOTE:  This NLRB decision affects non-union employers too!  

As I’ve reminded readers of this blog before, the National Labor Relations Act (NLRA) prohibition against engaging in any actions that would chill employees’ rights to engage in “concerted activity” applies to ALL EMPLOYERS – not just unionized employers.  “Concerted activity” is defined as two or more employees taking action for their mutual aid or protection regarding terms and conditions of employment.

The Decision

In Fresh & Easy Neighborhood Market, Inc., the NLRB held an employee was engaged in “concerted activity” for the purpose of “mutual aid and protection” when she solicited statements from fellow employees to support her sexual harassment claim against another employee.

The female employee complained of sexual harassment after one of the words she had written on a whiteboard at the request of her supervisor was subsequently changed to an inappropriate term for the workplace, and a drawing of a peanut or worm urinating on the employee’s name was added.   Because a workplace policy prohibited using cameras in the workplace, the complaining employee drew a picture of the offensive material and asked three coworkers to verify that her drawing was an accurate rendition of what was on the whiteboard. When she made the request that they sign her drawing, she told her coworkers that she intended to file a sexual harassment claim with the employer.

One of the co-workers who signed the drawing later complained to the employer that she was “bullied” into signing. Another co-worker who signed later testified that she signed only to avoid making a scene in front of customers. Significantly, none of the co-workers who signed the paper intended to take group action.

After receiving the employee claim of sexual harassment and the signed drawing, the employer instructed her to refrain from soliciting any further statements while it conducted the investigation into her complaint.

The employer’s investigation identified the employee who had altered the whiteboard message and the employer disciplined him. The employer did not discipline the female employee who complained of sexual harassment for the alleged bullying or take any other adverse actions against any other employees.

The majority of the NLRB concluded that when she asked her co-workers to sign her drawing, the complaining employee was engaged in “concerted” activity for the “purpose of mutual aid or protection.”  They reached this conclusion even though her

  • co-workers didn’t agree with her complaint of sexual harassment;
  • two of the co-workers who signed the drawing were uncomfortable with her request and only signed to keep her from annoying them and to avoid making a scene in front of a customer; and
  • the complaining employee was  the only immediate beneficiary of the solicitation to sign the drawing.

Despite finding a violation of the National Labor Relations Act, the NLRB ultimately ruled in the employer’s favor.  It did so for two reasons specific to the facts of this case.

First, the NLRB found that the employer’s “narrowly tailored” instruction to the complaining to refrain from obtaining additional statements from co-workers was a legitimate business justification to safeguard the integrity of an impartial and thorough investigation. In reaching this conclusion, however, it is important to know that the NLRB was also careful to remind employers that a blanket prohibition of discussing ongoing investigations of employee misconduct would violate Section 8(a)(1) of the NLRA. Second, the NLRB concluded the complaining employee inappropriately altered the statements of her co-workers.

Implications for ALL Employers

Given that this NLRB decision appears to expand the workplace activity that is protected by the National Labor Relations Act, employers can anticipate years of litigation to thrash out the particulars of what exactly is protected activity and what is not.

In the midst of this uncertainty, here are two suggested steps prudent employers should consider taking to mitigate the risks of becoming embroiled in NLRB actions or challenges of improper internal investigations by plaintiff’s counsel.

First Suggestion:

Review your policy manuals and investigation protocols o make sure the language complies with the NLRB’s “narrowly tailored” directive.  Click here to read my earlier blog and the Advice Memorandum issued by the NLRB that provides additional clarification on its position on confidentiality in workplace investigations.

Second Suggestion:

Make sure you use well-trained individuals who are aware of this decision to investigate complaints of harassment and other workplace misconduct.  If your internal resources need additional training, click here for information on upcoming training that is available in the coming months in Atlanta, GA, Washington, D.C., Metro-New York City, Hartford, CT, Scottsdale, AZ, Las Vegas, NV, Denver, CO, Cincinnati, OH, and Chicago, IL.


President Obama Signs Executive Order Significantly Limiting When Employers with Federal Contracts of $1M+ Can Mandate Arbitration

Predispute ArbitrationEffective immediately, companies who want to bid on federal contracts valued at $1M+ can no longer require their employees or independent contractors to waive their right to a jury trial for discrimination, harassment or sexual assault claims.

On July 31, 2014, President Obama signed an Executive Order that, among other things, prohibits employers with federal contracts in excess of $1 million (except for contracts for commercially available off-the-shelf items) from requiring their employees or independent contractors to waive their right to a jury trial and agree to arbitrate a dispute before it arises if it involves a claim arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment.  Under the President’s Executive Order, agreements to arbitrate those types of claim are only enforceable if the employee or independent contractor agrees to waive his or her right to a jury trial and go to arbitration if the agreement is made after the dispute arises.

The Executive Order also applies to employers who are federal subcontractors if the estimated value of the supplies acquired and services provided by the subcontractor exceeds $1 million.

There are two limited exceptions to the pre-dispute arbitration prohibition:

  1. It does not apply to employees employed pursuant to collective bargaining agreements.
  2. It does not to any employees or independent contractors “who entered into a valid contract to arbitrate prior to the contractor or subcontractor bidding on a contract covered by this order,” unless the contractor is permitted to change the terms of the mandatory arbitration agreement or the agreement is later renegotiated or replaced.

Implications for Employers

Employers with plans to bid on federal contracts of $1M+ should evaluate any existing or contemplated arbitration agreements to determine whether they are in compliance with this Executive Order.

As it relates to the prohibition against pre-dispute mandatory arbitration, this Executive Order is, for all intents and purposes, effective immediately.  I say this because although the Executive Order calls for the Federal Acquisition Regulation (“FAR”) Council and Secretary of Labor to provide further guidance on the new obligations set forth in the Executive Order, it is unlikely that the prohibition against pre-dispute arbitration agreements will be materially impacted.

For readers interested in learning more, I’ve provided below the relevant excerpts from the Executive Order and accompanying Fact Sheet issued by the White House as well as links to the full documents.

Relevant Excerpts from the Executive Order and Accompanying Fact Sheet Issued by the White House

     Executive Order

Here is the excerpt from the Executive Order relative to the prohibition against pre-dispute arbitration agreements.  The full Executive Order can be read by clicking here.

Sec. 6.  Complaint and Dispute Transparency.  (a)  Agencies shall ensure that for all contracts where the estimated value of the supplies acquired and services required exceeds $1 million, provisions in solicitations and clauses in contracts shall provide that contractors agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise.  Agencies shall also require that contractors incorporate this  same requirement into subcontracts where the estimated value of the supplies acquired and services required exceeds $1 million.

(b) Subsection (a) of this section shall not apply to contracts or subcontracts for the acquisition of commercial items or commercially available off-the-shelf items.

(c) A contractor’s or subcontractor’s agreement under subsection (a) of this section to arbitrate certain claims only with the voluntary post-dispute consent of employees or independent contractors shall not apply with respect to:

(i) employees who are covered by any type of collective bargaining agreement negotiated between the contractor and a labor organization representing them; or

(ii) employees or independent contractors who entered into a valid contract to arbitrate prior to the contractor or subcontractor bidding on a contract covered by this order, except that a contractor’s or subcontractor’s agreement under subsection (a) of this section to arbitrate certain claims only with the voluntary post-dispute consent of employees or independent contractors shall apply if the contractor or subcontractor is permitted to change the terms of the contract with the employee or independent contractor, or when the contract is renegotiated or replaced.

      Fact Sheet

Here is the excerpt from the Fact Sheet issued by the White House relative to the prohibition against pre-dispute arbitration agreements.  The full Fact Sheet can be read by clicking here.

Give Employees a Day in Court: The Executive Order directs companies with federal contracts of $1 million or more not to require their employees to enter into predispute arbitration agreements for disputes arising out of Title VII of the Civil Rights Act or from torts related to sexual assault or harassment (except when valid contracts already exist). This builds on a policy already passed by Congress and successfully implemented at the Department of Defense, the largest federal contracting agency, and will help improve contractors’ compliance with labor laws.

Part of the basic American bargain is that if you take responsibility, work hard and play by the rules, workers can count on fair wages, freedom from discrimination on the job, and safe and equitable workplaces. Taxpayer dollars shouldn’t be used by unscrupulous employers to drive down living standards for our families, neighbors, and communities. By creating incentives for better compliance and a process for helping contractors come into compliance with basic workplace protection laws, the Executive Order is basic good government that will increase efficiency in federal contracting and will help strengthen our workforce and our economy.