Hobby Lobby Decision Creates Costly Uncertainty

What happened to the Establishment Clause?

What happened to the Establishment Clause?

Much will be written in the coming days about the Supreme Court’s ruling in the Hobby Lobby case.

Here’s my two cents:  Justice Ginsburg got it right when she noted in her dissent that the Supreme Court has in this 5-4 decision “ventured into a minefield.”

Regardless of whether you agree with the ruling or not, I think we can all agree that this decision has created uncertainty for employers.  That uncertainty will increase the cost of doing business in the U.S. as it will inevitably result in increased litigation.

Before this ruling, religious exemptions to federal laws were limited to organizations formed for a religious purpose and engaged primarily in carrying out that religious purpose and were not engaged substantially in the exchange of goods or services for money beyond nominal amounts.

Following this decision, courts will now be engaged in the business of evaluating the relative merits of an employer’s differing religious claims or the sincerity with which an asserted religious belief is held.  It seems to me that this risk of the government endorsing any religious belief is exactly what the Establishment Clause was designed to preclude.

Consider the following hypothetical following the Hobby Lobby case:

Burger Joint is a privately held corporation 100% owned by a Jehovah Witness.  The corporation operates 30,000 restaurants across the U.S. and employs 10,000 people. Following the Hobby Lobby decision, Burger Joint decides to exempt from its insurance coverage payment for any blood transfusions.

In explaining this decision to its employees, Burger Joint explains that its sole shareholder is a Jehovah Witness and has a sincerely held belief that the Bible prohibits ingesting blood and, as such, prohibits blood transfusions.  Based on this sincerely held belief by the sole shareholder of Burger Joint the corporation will no longer be paying for blood transfusions under its health insurance coverage.

What do you think?  Will Burger Joint’s exclusion of blood transfusions from coverage under its health insurance plans be deemed legal post the Hobby Lobby decision?

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Win-Win Resolve, Solving Work ConflictWin-Win Resolve (www.WinWinResolve.com) is a law firm focused on helping employers and corporate counsel manage workplace conflict early and internally in a cost-effective manner.   It offers four primary alternative dispute resolution services to assist employers and corporate counsel: (1) Compliance Hotlines; (2) Internal Dispute Resolution Programs; (3) Impartial Workplace Investigations; and (4) Mediation.

U.S. Chamber Calls EEOC Enforcement “Abusive” During Obama Administration

EEOC AbusiveAfter acknowledging in recent testimony before the United States House of Representatives Committee on Education and the Workforce Subcommittee on Workforce Protections that “[c]ombating discrimination in the workplace is a worthy goal and one that the U.S. Chamber of Commerce supports,” the Chamber went on to call the EEOC’s enforcement tactics “abusive.”

The Chamber also accused the EEOC under the Obama Administration of having “misplaced priorities and overzealous litigation tactics.” The Chamber concluded its 17 pages of testimony by calling on the “EEOC to adopt institutional procedures to provide for internal accountability, more efficient use of resources and adherence to its own statutory conciliation and other obligations.”   If the EEOC fails to do so, the Chamber “encourage[d] Congress to use its oversight authority to install much needed safeguards within the EEOC.”

The Chamber’s testimony was delivered by Camille A. Olson, a partner of Seyfarth Shaw LLP, Co-Chair of its National Complex Litigation Practice Group, and National Chairperson of its Complex Discrimination Litigation Practice Group.

The Chamber’s testimony highlighted three areas of concern:  EEOC Investigations, EEOC Conciliations and EEOC Private Party and Amicus Litigation.

EEOC’s Investigations Called “Dilatory, Inconsistent and of Questionable Quality”

Under applicable law, the EEOC has a statutory obligation to “make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge.” In its testimony, the Chamber said the EEOC is failing to meet this obligation and criticized the EEOC’s investigations as being “dilatory, inconsistent and of questionable quality.”

The Chamber also stated that plaintiff and management attorneys and courts hare its concerns.  In support of this statement, the Chamber cited the meeting transcripts from public hearings held by the EEOC, including the public hearing in which I submitted testimony and participated.

Based on my informal discussions with employers and their counsel across the country, I concur that the EEOC’s investigations are of uneven quality.  It is for this reason that in my 2013 EEOC testimony, I urged the EEOC to review and standardize its investigation process and to reinvigorate its training program for investigators.

EEOC’s Statutory Obligation to Conciliate Should be Subject to Judicial Review

Under applicable law, the EEOC has a statutory obligation to “endeavor to eliminate any… unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  The Chamber view this obligation as “serve[ing] all sides – employees, employers and courts” and states that “needless, expensive, protracted litigation should be avoided if compliance can be obtained through informal means.”

In its testimony, the Chamber highlights a number of cases in which courts have found that the EEOC did not meet its statutory obligation to use informal conference, conciliation and persuasion prior to commencing litigation.  It also points out, however, that there is a split among the circuits as to what exactly is required under the statute.  Hopefully, the U.S. Supreme Court will grant the petition for writ of certiorari currently pending before the United States Supreme Court in Mach Mining v. Equal Employment Opportunity Commission  and directly address the issue of whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.

I agree with the Chamber that the EEOC does not appear consistently across the country to exhaust informal methods of conference, conciliation and persuasion before it files a lawsuit against an employer.  In fact, it is for this reason that in my 2013 EEOC testimony I urged the EEOC to

  • implement a pilot program incorporating a structured ADR process into the EEOC’s post-cause conciliation process;

  • consider promptly the use of ADR methodologies beyond mediation and arbitration, and to consider early case assessment, med-arb, and other hybrid processes prior to tendering a Right to Sue Notice; and

  • set a time line within the Quality Control Plan for implementing a pilot program incorporating a structured ADR process into the post-cause conciliation process.

Chamber Cites $5.6+ Million in Sanctions in Support of Proposed  Requirement that Commissioners Approve Any Multi-Plaintiff Litigation

According to the Chamber, in “the last two years, the EEOC has been ordered to pay employers over $5.6 million dollars as a result of its improper litigation and conciliation efforts.”  It says the EEOC has been sanction for its:  “failure to follow appropriate procedures before instituting litigation, failure to appropriately litigate the case, and failure to reasonably assess the appropriateness of continuing its litigation once it became clear in discovery that its complaint’s theory had no basis in fact.”

As the Chamber rightly points out, these $5.6+ million in sanctions are in addition to the significant internal costs associated with these same lost cases.  These internal costs include tax payer dollars used to pay the EEOC attorneys and staff who worked on these cases plus the tax dollars used to pay the expert witnesses in the cases.

The Chamber proposes that the EEOC mitigate the risks of such future sanctions and waste of EEOC resources (i.e. tax dollars) by returning to the litigation approval process that was in place prior to 1995.  This change would require that the bipartisan EEOC Commission comprised of five presidentially appointed members approve all multi-plaintiff litigation.

 

 

Workplace Investigations: Free Webinar Series

WinWinResolve.com and i-Sight.com

WinWinResolve.com and i-Sight.com

I was so pleased to be invited to present a three-part webinar series for i-Sight on the topic of procedural fairness in the context of workplace investigations.  Now, I’m even more pleased to share with the readers of this blog that I have given i-Sight permission to post these webinars on their website and THEY ARE FREE!!

i-Sight is headquartered in Canada and a global leader in the provision of configurable case management software for investigations.

The webinar series builds on recent research that concluded when employees view internal investigations as fair, they are more likely to report wrongdoing, and that can save companies a great deal of time, money and reputational damage.  To watch the FREE webinar series, simply click here and complete the form.

For readers seeking more in-depth training, I also regularly deliver two-day intermediate training for in-house counsel, risk managers, and human resources professionals on all aspects of workplace investigations.  The training is experiential, with a capstone experience of being deposed on an in-class investigation report.

These programs are designed to cross train in-house counsel and to enhance the skills of Risk Management and HR professionals for conducting investigations into bullying, discrimination, harassment and retaliation. Training is truly hands-on as mock witness interviews, report writing, and more are conducted in a small class setting.

Here are the dates and locations for this two-day training.  To learn more and register just click here.  

  • September 18-19, 2014 in Tampa, FL
  • September 22-23, 2014 in Atlanta, GA
  • October 27-28, 2014 in Washington, DC/N.Va.
  • November 10-11, 2014 in Chicago, IL
  • December 2-3, 2014 in Metro-New York City
  • December 4-5, 2014 in Hartford, CT
  • January 12-13, 2015 in Scottsdale, AZ
  • January 15-16, 2015 in Las Vegas, NV
  • February 10-11, 2015 in Denver, CO
  • March 10-11, 2015 in Cincinnati, OH

 

 

Is Equal Pay the Next Union Battle Cry?

equal payThe public and very messy firing of the New York Times executive editor Jill Abramson has been likened to a “lightning strike to dry tinder.”   As Amanda Bennett (former editor of the Philadelphia Post who was also fired) points out in her opinion piece in today’s The Washington Post, women across America are openly furious about unequal pay for equal work.   Many who have weighed in on this situation have highlighted how difficult it is for even well-educated, female top executives to challenge unequal pay.

Today’s guest blog by an attorney in Atlanta, Jennfer Keaton, offers a different perspective.  She asks the question — is equal pay the next battle cry of unions?

Savvy employers, of course, will not wait for a union to place pressure on them for equal pay for equal work.  They will proactively conduct compensation self-audits and remedy any pay disparities not attributable to one of the exceptions to the Equal Pay Act.

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Is Equal Pay the Next Union Battle Cry?
Guest Blog by Jennifer Keaton, Esq.

Cue the Unions!

Jill Abramson’s recent, swift dismissal from the apex of the New York Times could not have been timed much better.  The Obama White House has seen the signing of the Lily Ledbetter Fair Pay Act and its own disclosures that pay for White House staff may not be equitable across the genders.  Now a major player in Corporate America is admitting some less than stellar news about its own pay disparities.

If they’ll do it at the top, you have to suspect that there are no qualms about doing it at the bottom….or at least to the middle where subjectivity of performance evaluations and merit raises and bonuses thrive.

So, somebody cue the unions!

Union membership has been on a downward trend over the past two decades.  Opinions vary on the reason, but there is no denying that many employees do not see the value in the dues.  But perhaps this writing off of unions is unfair in light of these recent pay issues coming to light.

Unionize the Middle!

Let me define the Middle for you.  The Middle are college educated, largely white collar, salaried employees that are females.  They generally believe unions are for factory workers and “beneath them.”  They also believe that they can negotiate job duties, pay, and professional status for themselves, thank you very much. Yes, they believe they are the “upper middle class,” but they are living paycheck to paycheck most months due to the retail race with the Joneses or the nannies employed to enable the career and lifestyle.  They also came of age thinking that Women’s Lib was over and had achieved its objective well before they entered the workforce.

Middlers Unite!

Well, well, well, Middlers.  Looks like your cynicism about lifetime employment needs to extend a little further to your measly paycheck.  Yes, you earn six-figures, but it still may be four to five figures less than the jack-wad down the hall….but you’ll never know for sure.  So, how are you going to be sure you’re not left behind like Jill Abramson and her Times tattoo?

You won’t do anything, will you!?

But, what if you didn’t have to do anything to get your hands dirty or risk retribution for being the one nail that would get hammered down?  Yes, Middlers….your talent agent can do the messy business of negotiating your deal so that you can focus on closing business!  Your talent agent can ensure that the jack wads don’t make you look like a dolt on the P&L sheets.  Yes, show me the money!!

Your Talent Agent Will Do Something!

Middlers, get smart. Get negotiating.  And get your talent agent lined up.  Nowadays, you can get that talent agency lined up without a big fuss at all.  In fact, you can secure your collective talent agency without your company even knowing it and that talent agency can just march right into headquarters tomorrow and demand a reckoning, a negotiation, and restructuring of terms. That’s right Middlers, just like actors on hit TV shows, all this dirty work of pay negotiations and such can be done without you having to be troubled with it or damage those interpersonal relationships you’ve worked on for years.

Talent Agents Are Just A Phone Call Away

Middlers, faster than you can pull together a jewelry trunk show at your suburban house, you can hold a meeting amongst you and a Talent Agency ready to get you all signed up.  Want to send a message, it can be a simple exercise that won’t require you to stand on a street corner clamoring for cars to honk at you or to be a sweaty Norma Rae.  Ewwww.  A Talent Agency is your answer, or at least a really fast answer with a proven track record of paying jack wads a going rate.

So, why not give a local Talent Agency a try?  Just give a quick Google to the SEIU or AFL-CIO to get started.   You are worth it!

When Internal Documents Aren’t Covered by Attorney-Client Privilege

Daily ReportA decision issued on March 6 by the U.S. District Court for the District of Columbia serves as a stark reminder that internal investigations must be carefully structured and executed to garner the protection of the attorney-client privilege and attorney work product doctrine, especially when non-attorneys are being used to assist in the investigation.  The case is United States ex rel. Barko v. Halliburton, No. 1:05-CV-1276 (D.D.C. slip op. issued March 6, 2014).  I mentioned this case briefly in my blog post Workplace Investigations:  Tips & Templates for Preserving the Privilege.

For those who conduct or supervise internal investigations or manage compliance programs, this case is a must read.

Today’s edition of the Daily Report includes a more in-depth analysis of the case and a discussion of the implications of the case for legal counsel.  For readers outside the metro Atlanta area, the Daily Report is the primary source for news about the courts and the business and profession of law for lawyers in metro Atlanta and the state of Georgia.

Click to read the Daily Report article:  When Internal Documents Aren’t Covered by Attorney-Client Privilege

Should Clipper Owner Follow Github Co-Founder’s Lead?

Wow.

Which debacle should we watch?

Choice one:  The Los Angeles Clippers and their embattled owner, Donald Sterling, who seems to have been caught on tape making racist comments that are causing the fast exodus of sponsors.  The  NBA is scheduled to hold a news conference tomorrow about its investigation into the alleged comments.

Choice two:  Github – where the co-founder resigned following an independent investigations into widely distributed social media  allegations of a sexist environment, hostile work environment and retaliation made by a female developer.  Faced with harassment and retaliation allegations, Github commissioned an independent investigation and has released two press releases about the independent report.

Github has not released the entire report, although today its CEO posted a blog that began “[l}ast Monday I published the least open and least transparent blog post GitHub has ever written.”  

Github went on to apologize for lack of transparency in discussing the investigation that it commissioned into the allegations and provided a summary of the investigation process and its results.  

As regards the findings about the co-founder the blog said:

Founder allegations. The investigation found Tom Preston-Werner in his capacity as GitHub’s CEO acted inappropriately, including confrontational conduct, disregard of workplace complaints, insensitivity to the impact of his spouse’s presence in the workplace, and failure to enforce an agreement that his spouse should not work in the office. There were also issues surrounding the solicitation of GitHub employees for non-GitHub business and the inappropriate handling of employee concerns regarding those solicitations.

After being presented with the results we felt Tom could no longer be an effective leader at GitHub. He offered his resignation and we accepted.

Free Webinar on Conducting Investigations that Are Trusted by Employees

WinWinResolve.comExcited to have been invited by i-Sight to do a free 3-part webinar series on Conducting Internal Investigations That Are Trusted by Employees.

The series kicks-off tomorrow at 2 p.m.  If you haven’t registered yet, click here to do so.

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Win-Win Resolve, Solving Work Conflict

 

 

 

 

 

Win-Win Resolve (www.WinWinResolve.com) is a law firm focused on helping employers and corporate counsel manage workplace conflict early and internally in a cost-effective manner.   It offers four primary alternative dispute resolution services to assist employers and corporate counsel: (1) Compliance Hotlines; (2) Internal Dispute Resolution Programs; (3) Impartial Workplace Investigations; and (4) Mediation.

6 Tips to Increase Employee Trust of Internal Investigations

www.WinWinResolve.com

www.WinWinResolve.com

The most recent study of the nonprofit Ethics Resource Center concluded that an investigation process viewed as procedurally fair “substantially increases the chances that reporting employees will accept the [company’s] outcome.”

Earlier this week, I wrote a post about the research and also spoke with Sue Reisinger at Corporate Counsel about the implications of the research, suggesting that it is time for companies

  • to rethink how they handle internal compliance complaints; and
  • develop protocols and training curriculums that help translate the precepts of procedural fairness into daily practice.

Tips for Employers

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 party 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 complaints is critical as appearing approachable and accessible is a key component of procedural fairness. Share the bio and picture of the person who will receive compliance reports with company employees.  Tell your employees why they can trust this person to receive their complaints and concerns.  Ensure that employees can make reports in their native language.
  • Explain what you’re doing and why: For many employees, making a compliance report can be a traumatic event. The jargon and procedures can be confusing and intimidating and many will fear retaliation.   Use simple terms to explain the process and 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 to “check-in” periodically with the reporting employee.
  • Carefully select a well-trained and neutral investigator.  Research shows whether the reporter trusted the investigator was critical to whether the reporter perceived the investigation as procedurally fair.   When communicating with the complaining employee, the accused employee and witnesses, the investigator needs to make eye contact and use body language that conveys respect.
  • Close the loop with the reporting employee, accused and any witnesses interviewed.   Even in situations where confidentiality concerns preclude the ability to share the results of the investigation, closing the loop with everyone who participated in the process is critical.  Closing the loop, gives the opportunity for the company to assure the participants that the company works hard to apply its compliance policies in a consistent manner.  One strategy for doing this where confidentiality precludes sharing the actual results any corrective action or the results of the investigation is for the company to provide an overview of the company’s neutral, fact-based, and unbiased decision-making process.
  • “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 and resolved.  Where appropriate, thank the reporting employee and the employees who participated in the investigation.”

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Win-Win Resolve, Solving Work ConflictWin-Win Resolve helps employers save time and money and strengthen compliance programs.  We manage employee hotlines and internal dispute resolution programs and conduct workplace investigations and mediations.  Learn more Win-Win Resolve.

 

 

Whistleblowers and Procedural Fairness: Why Employers Should Care

Win-Win Resolve, solving work conflictThe United States Supreme Court’s March 4, 2014 decision in Lawson v. FMR LLC not only expanded the whistle-blower coverage under the Sarbanes-Oxley Act of 2012 (“SOX”), it also stoked fears that a new wave of SOX whistle-blower litigation testing the scope and meaning of SOX is imminent.   In Lawson, the Supreme Court held by a 6-3 margin that the SOX anti-retaliation provision applies not only to employees of publicly traded companies, but also to employees of non-public companies that provide work for public companies.  Until the Lawson decision, employers generally operated under the belief that SOX applied only to employees of publicly traded companies.

In addition to the expanded SOX whistle-blower coverage following the Lawson decision, U.S. employers also face ever expanding whistleblower related exposure under federal and state laws.  Those federal statutes include the Dodd-Frank Act, OSHA, the Fair Labor Standards Act, and the Family and Medical Leave Act.  There are also numerous state and local civil rights, discrimination and/or public safety whistleblower laws.   In this evolving area of law, federal and state governments are also making it easier and easier for employees to make whistleblower claims via national and state hotlines.  They are also 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.   Click here to read research.

Procedural Fairness Key to Whether Employees Becomes Whistleblower

A 2013 study by the Ethics Resource Center examined the hotline reporting experience of 612 employees at five companies.   Perhaps the most significant finding of the study was that “the primary factor influencing the degree of acceptance was whether or not the reporters felt the procedure used to handle their report was fair.”  In looking at this finding more closely, the researchers found that “reporters indicated that the quality of decision-making was slightly more important to acceptance than the quality of the personal treatment they received, but that positive perceptions of both of those elements contributed to acceptance.”

Notably, the study also evaluated how reporting employees react when their report is not substantiated or when the reporting employees do not know the outcome of the investigation.  In both instances, the reporting employees’ perception that the review process was procedurally fair was a “critical influence in shaping acceptance and outweighs outcome favorability.”  That finding is significant in the context of internal workplace investigations where confidentiality concerns often preclude an organization from sharing any disciplinary decisions that may have resulted from the concerns or complaints made by the reporting employee.

In the study, 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 researches used a regression analysis to determine the influence a favorable outcome had on the reporter’s perception of procedural fairness.  Not surprisingly, reporters who viewed the outcome of the investigation as favorable were more likely to accept the outcome.  What was surprising though was that whether or not the investigator substantiated a reporter’s complaint had little impact on reporter perceptions of the process.  Click to read full report.

Four Keys to Procedural Fairness

These findings are consistent with more general social psychology research into the concept of procedural fairness.  According to research by Tom R. Tyler, professor of law and psychology at Yale Law School, there are four key aspects to whether a person will accept a decision making process as procedurally fair:

  • Voice – People want to have the chance to tell their side of a story and in their own words to the decision maker;
  • Neutrality – People want to feel that the decision maker is making the decision based on facts and rules and not the decision maker’s own personal opinions.  They also want to feel that the rules are applied consistently across people and cases;
  • Respect – People want to feel that their concerns are taken seriously by the decision maker and that they treated with respect when they raise their concerns;
  • Trust – People want to feel like the decision maker is listening to them and consider their views.  They want to feel like the decision maker is trying to do what is right for everyone involved and that the decision maker is acting in the interests of the parties and not in the decision maker’s self-interest.

Tips for Employers

In today’s world of social media, where a disgruntled employee can with a few key stroke share his or her complaints with the world, prudent employers are working hard to give their employees a clear way to report workplace concerns like fraud, harassment, discrimination and retaliation internally.  They are implementing investigation protocols that ensure allegations of workplace misconduct are investigated promptly, thoroughly and impartially.  They understand that a strong internal investigation protocol is a critical step in encouraging employees to keep concerns internal rather than allowing employees to feel their only alternative is to take to social media or to contact one of the government’s fraud hotlines or an adversarial attorney.

In light of the above research surrounding procedural fairness, prudent employers are also providing their risk managers, management teams and HR professionals with training on how to ensure and effectively present procedural fairness to reporting employees.  As we all know, perception is reality and increasing the perception of procedural fairness further increases the likelihood that a reporting employee will accept the outcome of an internal workplace investigation and refrain from posting on social media or contacting a third-party like the government or adversarial counsel.

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Win-Win Resolve, Solving Work ConflictWin-Win Resolve™ is a customizable Internal Dispute Resolution (“IDR”) program that helps companies save time and money by credibly and cost-effectively assessing employee hotline complaints by categorizing them into low, medium or high-risk categories and facilitating the rapid implementation of a risk-based and procedurally fair dispute resolution program.

Large corporations and organizations have long known the benefits of IDR programs. Now, with the turn-key Win-Win Resolve™ program, even smaller and mid-sized employers can more easily see benefits similar to those experienced by the General Electric Company, which in a three-year period saw employment litigation costs fall from $6 million to under $1.2 million per year and perhaps as importantly achieved this result without incurring the onslaught of frivolous claims that some had feared. The Department of Energy (“DOE”) and the U.S. Postal Service saw similar results withe the DOE saving $1.3 million by mediating workplace disputes and the U.S. Postal Service experiencing a 40 percent decline in the number of employees who filed a new EEO complaint after it implemented an internal mediation program.  Click here to learn more:  www.WinWinResolve.com

Workplace Investigations: Tips & Templates for Preserving the Privilege

Win-Win HR, Attorney-Client PrivilegedAlthough the attorney-client privilege is firmly established as a legal doctrine that protects confidential communications between lawyers and their clients, a recent federal court decision stands as a stark reminder that its application is not absolute. In United States ex rel. Barko v. Halliburton Company et al., the court ordered a Halliburton subsidiary to produce documents related to an internal investigation of an alleged Code of Business Conduct violation.  The court found that these documents were not protected under the attorney-client privilege or the work product doctrine because the investigation was “a routine corporate . . . compliance investigation required by regulatory law and corporate policy” and the “investigations would have been conducted regardless of whether legal advice were sought.”  To read a more in-depth analysis of the Halliburton opinion, click here or here.  

The determination of whether the attorney-client privilege and work product doctrines apply in any given case is fact dependent and there is no one “magic bullet” or guaranteed safe haven.  With that said, there are a number steps a company can take to maximize the likelihood that a court will deem an internal investigation protected from disclosure by the attorney-client privilege or attorney work product doctrine.

Tips & Templates for Companies to Preserve the Attorney-Client Privilege

  • Do not put compliance on auto-pilot.  Evaluate each allegation of misconduct on a case-by-case basis and determine which allegations will be investigated and by whom.
  • Involve the company attorney (either in-house or outside counsel) early when allegations of workplace misconduct are made.
  • Formally document that an internal workplace investigation is being initiated to gather facts necessary for the company’s attorney to give the company legal advice.
  • Document any threat of litigation.
  • If a non-attorney is going to assist in the investigation, the company attorney should give the non-attorney an Upjohn letter formally documenting that the non-attorney is working at the direction of legal counsel to gather facts necessary for the attorney to give the company legal advice.  Upjohn warnings are named after Upjohn v. United States, 449 U.S. 383 (1981), the case in which the Supreme Court made clear that the corporate attorney-client privilege applied to a much wider group of Constituents than the corporation’s “control group.”  Click here for an Upjohn template.
  • Give all witnesses Upjohn warnings.  Advise all individuals who are interviewed that the investigation is confidential and being done at direction of legal counsel in order to gather facts necessary for the company attorney to provide legal advice.  Even better, document these witness instructions and consider having each witness sign an acknowledgement.  Click here for a template for this type of instruction.
  • Mark all documents created during the course of the investigation as attorney-client privileged and attorney work product.
  • Maintain the investigation files in a confidential manner.
  • Do not discuss the investigation except with those with a legitimate need to know.

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workplace investigations groupTraining designed to cross train in-house counsel and to enhance the skills of Risk Management and HR professionals for conducting investigations into alleged workplace misconduct such as discrimination, harassment, bullying and retaliation. Training is truly hands-on with mock witness interviews, report writing, and more conducted in a small class setting.  Next class is April 21st.

For more information or to register, click here.