Is the C-Suite Ready for Trial Tweeting?

Tweets Flying Out of CourthouseThe tweets are flying out of the courtroom in day 5 of the highly anticipated Silicon Valley sex bias jury trial happening right now in a Superior Court of California San Francisco courtroom.

Journalists from the Wall Street Journal, Business Insider, Wired, The Verge, VentureWire, USA Today, and Re/Code are sharing their observations of the jury trial on Twitter®. There are also Tweets from lay people.

To say the least, navigating this strange, new world presents lots of challenges for business leaders. Everyone in the C-Suite knows the importance of being well-prepared for questions from investors and analysts at investor relations presentations, but how prepared are business leaders to respond to questions coming on Twitter or other social media accounts?

Consider, for example, the impact on employee recruitment and retention of the following Tweets coming out of the courtroom in the Ellen Pao v. Kleiner Perkins Caufield & Byers jury trial:

 

More Women Needed in Leadership

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locker room mentality at Kleiner Perkins

Complaints at Kleiner Perkins

Contempt - Ellen Pao v.  Kleiner Perkins

 

Ellen Pao v. Kleiner Perkins

Ellen Pao v. Kleiner Perkins

 

Will Employer’s Attempt to Keep Ellen Pao Discrimination Trial Secret Work?

Stop Spectator AccessNearly three years after a former junior-partner at venture capital firm Kleiner Perkins Caufied & Byers LLC filed her lawsuit alleging gender discrimination and retaliation, the jury trial appears set to begin next week.

As a general matter, jury trials of civil discrimination claims are presumptively open to the public.   This right of the public to attend civil trials is rooted in democratic principles as articulated in 1884 by Oliver Wendell Holmes who was then a justice on the Massachusetts Supreme Court:

“It is desirable that the trial of [civil] causes should take place under the public eye, … not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”

Cowley v. Pulsifer, 137 Mass. 392 (1884).

In a motion filed yesterday, Kleiner Perkins argues that the right of the media and public to attend these types of civil jury trials is not absolute. Citing the right to privacy of non-party employees and the “injurious effects” of disclosing its confidential and commercially valuable business information, Kleiner Perkins has asked the judge to prevent spectators from watching certain parts of the jury trial.

Specifically, Kleiner Perkins has asked that the Court exclude

“spectators from the courtroom when evidence is presented regarding (1) third-party employee compensation and performance . . . (2) KPCB’s confidential/proprietary business information and financial performance; and (3) investment financial information and performance regarding third-party Managing LLC’s funds.”

To read the full motion click here.

Opposition Likely to Motion to Exclude Spectators

Even if for some reason Ellen Pao’s legal team decides not to oppose Kleiner Perkins’ motion to exclude spectators from the courtroom, I think it is safe to predict that the media will ask to intervene to oppose the motion. This case has been widely followed in the media and given the amount of coverage the public interest in the case seems clear.

Assuming this case does not settle, I will be providing updates on this issue of public access to the jury trial as well as the case more generally as the case proceeds.

What Can You Learn From Wal-Mart’s Screw Up?

Walmart SanctionedIn December 2014, a federal judge here in Atlanta sanctioned Wal-Mart Stores Inc.for destroying evidence in an employee discrimination case. The sanction was two fold: (1) Wal-Mart was ordered to pay $19,980.00 in attorney’s fees to the employee’s attorney; and (2) the federal judge held that if the case proceeded to a jury trial the jury would be instructed to presume that Wal-Mart terminated the employee in retaliation for the employee filing a claim of discrimination with the Equal Employment Opportunity Commission.

Yes, you read that right. The federal judge decided that Wal-Mart’s conduct was so egregious he ordered that if the case proceeded to a jury trial he would instruct the jury that Wal-Mart had engaged in illegal retaliation. The only issue, at that point, for the jury to consider would be what amount of damages should be awarded.

Not surprisingly, given this ruling by the judge, the parties have now entered into a confidential settlement.

So, what did Wal-Mart do to deserve this drastic sanction?

Here’s the chronology of events according to the employee’s Motion for Sanctions for Spoliation of Evidence he filed with the Court:

Wal-Mart Chronology Sanctions

According to the documents filed with the court, Wal-Mart’s video surveillance system regularly taped over the videotapes in the cameras unless action was taken to stop that process. It is undisputed that neither the Store Manager nor anyone from the Human Resources department took the necessary steps to preserve the video tape.

In reading the court filings in this case, including the sworn deposition testimony of the Store Manager, it seems that at least one explanation for why Wal-Mart failed to take steps to preserve the video tape was that he didn’t think that there was going to be any dispute about whether or not the gate was left unlocked. If you believe his deposition testimony, he says that Abdulahi admitted he had left the Garden Center gate unlocked.

But it turns out that Abdulahi denied he left the Garden Center gate unlocked when he was questioned under oath during his deposition in the federal lawsuit.

So how could Wal-Mart have avoided this court sanction and what should other business leaders takeaway as the lessons learned from this case? I contacted James Radford, the attorney who represented the employee in this case, and he shared the following lessons for employers:

Slide1

In addition to the lessons suggested by James, I would add the following:

  • Train all of your employees responsible for employee discipline, including terminations, to ensure they understand the importance of preserving all of the information that they rely on to make disciplinary or termination decisions — even if they think (as this Wal-Mart manager likely did) that some of the information is redundant.
  • Train all of your employees responsible for conducting investigations into allegations of workplace misconduct in how to conduct and document investigations that will withstand legal scrutiny. Workplace Investigations Group offers training programs nationwide.
  • Implement a process for review of all terminations by Human Resources and/or your employer’s legal counsel.

 

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.”

Indeed.

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.

Wrong.

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.