Join Me in Miami for Investigation Training!

workplace investigation training
It’s cold here in Atlanta and I’m excited to head to the beaches and warmer weather of Miami next week.  I’d love it if you joined me!

On Wednesday and Thursday (Feb. 17th and 18th) I’ll be teaching a two-day interactive training on how to conduct effective workplace investigations that will withstand scrutiny.  This course is specifically designed for HR professionals, EEO investigators, Title IX investigators, in-house counsel and other compliance professionals with responsibility for conducting impartial internal investigations.

This is my favorite course to teach and is a highly interactive class with exercises designed to put concepts into action in a mock-investigation setting where immediate feedback, tips, and discussion can occur in a productive and meaningful setting. Each attendee receives a manual that includes forms, case law, and other information and resources.

Upon request, HRCI credits will be applied for (this course has been previously approved over the past three years). After successful completion of the course, a certificate is issued to the registrant.

To view the full agenda and register, click here: http://www.internal-investigations.com/training-agendas-registration/

 

Caltech President & Provost Use Title IX Investigation to Drive Change

Kudos to CaltechKudos to Caltech’s President and Provost for their strong leadership in the wake of a Title IX investigation finding that a tenured professor had engaged in “unambiguous gender-based harassment” of two female graduate students.

Instead of hiding behind the typical curtain of confidentiality that shrouds Title IX investigations, the President and Provost issued a memorandum to the entire Caltech community stating that

[a]lthough the details [of the Title IX investigation] must remain confidential, we nevertheless feel that this situation is sufficiently important that enough information must be provided to permit our community to evaluate the situation and to contemplate the changes required to minimize the chances of anything like it happening again.

The memo went on to explain that following complaints by two graduate students that a faculty member had harassed them that a “comprehensive investigation” had been conducted by faculty committee who then reported to the provost. According to the memo, the faculty committee concluded and the provost concurred that “there was unambiguous gender-based harassment of both graduate students by the faculty member.”

Without identifying the names of the graduate students or the faculty member, the memo then outlined the disciplinary and remedial actions it had taken in response to the finding:

The faculty member was placed on unpaid leave for a full academic year, and he is restricted from coming on campus. Importantly, in order to make sure that the two students involved and other students are protected against continuation or new instances of such behavior – while also endeavoring to ensure that their academic progress is not adversely affected – communications between the faculty member and members of his group are being carefully monitored. In addition to these professional and financial sanctions, the suspended faculty member must undergo professional coaching and training in how to mentor students before returning to campus. A demonstrable change in behavior and mentoring approach will be required before unmonitored interactions with students can resume. Structural changes in the division’s advising approach are being put in place to ensure that students are properly and effectively mentored.

According to the memo, the faculty member appeal of the disciplinary actions was denied.

But …. The President and Provost didn’t stop there. They then used this Title IX investigation to help drive cultural change across the Caltech community, announcing three campus-wide initiatives as well as changes being made in every division across the university.

In reading the Caltech President and Provost’s memo, I couldn’t help but contrast their leadership in the wake of the allegations of harassment to that of the University of Missouri President’s self-proclaimed “inaction” in response to racially motivated incidents on campus.

Not only did Caltech’s leadership step up to the plate and promptly investigate and address the allegations of harassment as required by Title IX, but they seized the situation to help drive change across the university.

Kudos Caltech! Kudos!

The full Caltech memo can be read here.

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workplace investigations groupAbout the author:  Lorene Schaefer, Esq. is an attorney who works as a mediator and impartial workplace and Title IX investigator and also serves as the President of Workplace Investigations Group.  Workplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial workplace and Title IX investigations.  All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny.  Click here for information on upcoming training in Washington D.C., Miami, FL, Las Vegas, NV, Chicago, IL, Cincinnati, OH, St. Louis, MO, and Newton, MA.

Employment Law Blog Carnival: A Festival of Lessons

Festival of Lessons Employment Law Blog Carnival‘Tis the season — celebrations, festivals and observations:  Hanukka, Boxing Day, Omisoka, St. Lucia Day, Ramadan, Saturnalia, Bodhi Day, Fiesta of Our Lady of Guadalupe, Yule, Kwanzaa, Three Kings Day, Eid al-Fitr, Saint Nicholas Day, Christmas.

Not to be outdone, my fellow employment law bloggers and I have joined right in with our own “Festival of Lessons” for this December edition of the Employment Law Blog Carnival.  A special thanks to all the great bloggers who contributed this month and for allowing me to host this esteemed group.

Now let the Festival of Lessons begin!!

Lesson of Thankfulness

In too many workplaces, HR professionals work tirelessly with little thanks for their efforts. Vanessa Goddard is out to change that with this poem of holiday thanks:  ‘Twas the Holiday Season:  Here We Go Again

Lesson on Internal Investigations

Higher education and sports teams have been in the headlines recently for their poor handling on internal investigations into claims of harassment and discrimination. Per Jennifer Keaton, the University of Minnesota is an exception and she highlights in her lesson on internal investigations Three Things the University Did Right that Most Employers do Wrong.

Lesson of Generosity

Yes, there is such a thing as being too generous — at least in the workplace. As Sharlyn Lauby points out in her lesson on generosity, sometimes engaging in generosity can generate unintended legal risks — Handling a Negative Sick Pay Balance.

Lesson on Anti-Muslim Rants

Given the terrorist attacks in Paris and San Bernardino, Calif., I think we can expect that in at least some workplaces someone is going to go on an anti-muslim rant. Donna Ballman is exactly right in her important lesson that unless the employer “shut[s] them down speedy quick,” Those Anti-Muslim Rants Are Going To Get You Sued.

Lesson on Harassment

Many employees mistakenly believe that any negative interaction constitutes illegal harassment.  Not the case. Click here to read Stuart Rudner’s lesson on why Managing is Not Harassment.

Lesson on Holiday Pay

The holidays are a hectic shopping period with extended hours and Doug Hass rightfully reminds employers that this is also a time when retailers need to be especially mindful of their obligations under the FLSA and state and local laws, especially in light of the Department of Labors Recent Outreach to Retailers’ Employees.

Lesson on Holiday Parties

There’s an old joke among employment lawyers that we get some of our best cases (read high legal fees) as a result of holiday parties run amok. Be sure to read Andrea Paris’ Holiday Party Checklist for Employers to learn your lessons now and avoid being that employer.

Lesson on Social Media

Thanks to Eric B. Meyer for this reminder that Yes, Employees Can Fight Workplace Harassment with Social Media. In this important lesson for employers, he urges them to not make social media a measure of first resort for your employees, but rather to provide multiple direct and effective methods for employees to address their concerns and improve the workplace.

Lesson on Weapons at Work

Given the instances of workplace violence in the news, many employers are considering banning weapons at work. Janette Levey Frisch warns that may or may not be possible depending on state and local laws in her blog Can You Ban Weapons in the Workplace?

Lesson on National Origin Discrimination

Among Title VII’s less-used provisions is its prohibition of discrimination on the basis of “national origin” and as Robert Fitzpatrick rightly points a plethora of open issues remain with these types of discrimination cases. Click here to read Fitzpatrick’s analysis of a recent New Mexico case where the Court Recognized a Claim of National Origin Discrimination Based on Non-Hispanic Status and Rejected the Heightened Proof Standard for Non-Minority Claims.

Lesson on Job Descriptions

Too many employers either don’t have job descriptions or have poorly written job descriptions that are creating undue legal risk. The good news for readers of this blog – Bill Goren has some great lessons for us all in What’s Wrong with This Job Description? Let Me Count the Ways.

Lesson on Alcoholism and Disability

By now, most everyone in the HR profession has been challenged with managing the legal risks associated with disciplining or terminating an alcoholic as alcoholism is considered a disability under the Americans with Disability Act as well as most, if not all, state disability laws. Robin Shea has some great lessons for us all in her take on the Trojan Travails and Coach Sarkisian’s Alcoholism-Discrimination Lawsuit Against USC.

Lesson on Accommodating Hearing Loss

According to a 2011 study led by researchers from Johns Hopkins, nearly 20% of Americans 12 and older have hearing loss so severe that it may make communication difficult.  Given this large percentage, most employers will at some point be faced with a duty to accommodate an employee or applicant who has, due to illness or age, acquired hearing related problems. The good news for readers of this blog is that Mike Haberman has some excellent lessons and suggestions for Accommodating the “Hard of Hearing” Employee.

 

 

 

Lawyers React to University of Minnesota Investigation Report – First in Series

Lawyers React to University of Minnesota Investigation ReportThe Board of Regents for the University of Minnesota has made headlines relating to the recent conclusion of a significant investigation into its Athletics Department. Unlike many of its peers, however, the Board received fairly good news about sexual misconduct in its workplace. The report, which can be found here, offers many learning opportunities for managing “blind spots” in schools and in workplaces.

Today, I kick-off a blog series featuring the reactions of lawyers to the 743 page investigation report with a guest blog from Jennifer Keaton, Esq., an attorney who is regularly retained by employers as Investigation Counsel and is the Vice President of Workplace Investigations Group.

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How the University handled anonymous complaints of sexual harassment and/or misconduct highlights a bright spot for the University. Here are three things they did right…which most employers do wrong!

Thing One: Pursue It!

The University has multiple ways that individuals can report suspected misconduct, including a means to make anonymous complaints or reports of concerns. Many employers and schools have these options, too. The University here did something with those anonymous complaints that others don’t: they pursue the complaint!

For each anonymous complaint, the Report here explains when it was received, how detailed the complaint was, and how they actively pursued more information. Many employers and schools simply discard anonymous reports or give short shrift to their veracity before taking active steps and documenting those steps to gain more information. Skipping the “pursuit of knowledge” not only is cowardly, but it also contributes to the potential for an ever-growing blind spot for the organization.

The external report’s treatment of these anonymous complaints (pages 69 to74) reads like a sheet of music. The investigators document when the complaint was received, a general characterization of the concerns included in it, and then what steps (plural!) the investigators pursued to find out more. These steps included:

  • Attempting to contact the anonymous reporter with questions for more information through the reporting system;
  • Attempting to contact the anonymous reporter with an invitation to contact specific individuals more directly;
  • Following up with individuals who might have some knowledge of the allegations made anonymously (for example, an employee who worked in close proximity to the place an event was alleged to have occurred)
  • Following up with entities and individuals outside of the school/workplace – including former students, prior employers, etc.
  • Consult/Implement a “Climate Survey” that is relevant to generalized or “environmental” concerns.

Thing Two: Document It!

A common refrain from some employers regarding anonymous complaints is that they are a waste of time. The Report here shows the other side of that coin: the time spent may be minimal and priceless!

In the Report, the processing of anonymous complaints was well documented. In those instances where the efforts resulted in little or no further information that could be pursued, that result was noted. And, the entire dispatch of the matter was captured in three short paragraphs.

So, in documenting the efforts and the results, which in some instances was confirming that the complaint was a dead-end, the Report demonstrated quickly and very effectively something that is priceless: Integrity.

By documenting even the dead-end investigations, the University not only demonstrated concern, but demonstrated actions behind the words. This also demonstrated an organization that is not fearful of “bad news,” but rather an organization that actively wants to be the FIRST to know and the FIRST to resolve problems in its midst. That kind of responsiveness also bolsters the credibility of the process itself, not just its integrity.

Thing Three: Even-Handedness

In this Report, the results include good news and bad news. The tone of the delivery of both kinds of news, however, is the same. Objective. Direct. Matter-of-Fact. Why is this important?

While some may call this “even-handed,” what it really demonstrates is that the people behind the investigation are impartial. There is no obvious “shading” or “sugar-coating” in the report of results. It reads like an IKEA instructions manual. The wrongs are obvious. The rights are obvious. And, the “needs improvements” are obvious without fanfare.

For the University, the report will have a life of its own for years to come. It is tangible proof to future “whistleblowers,” victims, and shareholders of what they can expect if they raise their hand. It should encourage individuals within the community to have trust in the process and to USE the process in the future.

Well done, Investigation Counsel (Karen Schanfield, Esq. and Joseph Dixon, Esq.), well done.

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workplace investigations groupWorkplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial internal investigations.  All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny.  Click here for information on upcoming training in Washington D.C., Miami, FL, Las Vegas, NV, Chicago, IL, Cincinnati, OH, St. Louis, MO, and Newton, MA.

Good Will Hunting and Workplace Investigations: Vigilance Against Bias

Mark Flynn, Esq., SPHRToday’s thought-provoking guest blog is from my colleague in Workplace Investigations Group, Mark Flynn, Esq., SPHR.  Mark is an employment attorney in Denver, Colorado and founder of Employment Matters LLC and Flynn Investigations Group (“EMFIG”). Mark started EMFIG to continue his specialization in conducting workplace investigations and providing counseling and training seminars on employment matters. He views compliance and conflict resolution as fundamental to a preventive law approach to promote effective, prosperous workplace and school environments. Previously, Mark worked at a 3,000-member employers association for over 18 years, where he developed and managed a team of investigators performing over 100 investigations annually.

Good Will Hunting and Workplace Investigations:  Vigilance Against Bias

by Mark Flynn, Esq., SPHR

I like to ask the “favorite movie” question and Good Will Hunting is a popular pick in my experience. To Good Will Hunting fans I sometimes present a “did you notice” question.

It starts with recollection of a favorite scene in the movie – when Will (Matt Damon) steps into Chuck’s (Ben Affleck’s) conversation at a bar with a Harvard Grad student intent on sabotaging Chuck’s attempt to meet two “Harvard hunnies” (Minnie Driver and friend). Will proceeds to dress him down as a parrot of published works on American history without an original thought of his own. Juxtapose that scene with Sean (Robin Williams) and Will’s “Taster’s Choice moment between guys” on a bench overlooking a pond. Will aggravates Sean to violence in their previous meeting, but now Sean explains finding calm after realizing that Will doesn’t know what he is talking about, even if Will’s genius enables his command of any subject still short of personal experience: “I can’t learn anything from you that I can’t read in a [expletive] book.” It’s the same valid criticism that Will levels at the Harvard Grad student and provides a lesson in humility.

Discovering the hypocrisy of our own thinking or behavior can make for profound revelation. Ideally, it inspires responsible cautiousness and self-examination. The life lesson is a great tool for workplace and school investigators – and managers and executives too.

Conducting workplace investigations demands humility more than self-assurance. The most effective and reliable investigators perceive themselves small rather than big.

Starting from a stance of “I don’t know” helps avoid assumptions and drives the initial, primary goal of hearing each side of the story before reaching conclusions. From there, acknowledge your susceptibility to biases. Biases derive from implicit reliance on stereotypes born from individual life experiences, environment, and culture. Every point of view is a view from a point and no person escapes the human condition. Any absolute denial of personal prejudice, conscious or unconscious, is at best unpersuasive and at worst dishonest.

The on-going study of bias is fascinating. The multiple forms of cognitive bias, like Confirmation Bias and Halo Effect, as well as Implicit Association Tests and Heuristics are engrossing, even to laymen – at least this layman. The reliability of implicit bias evidence in employment discrimination litigation is far from settled with strong opinions on both sides of the issue, and separate legal-eagle debate over the centrality of causation versus discriminatory intent for disparate treatment claims. In any case, the good news is that social science suggests that individuals can control even implicit biases with various forms of conscious effort – including articulating opinions or decisions in writing (my personal favorite). Self-awareness and recognition of our essential subjectivity supports vigilance against bias in the workplace, investigations, and in life.

 

 

Nominated for 2015 Best Legal Blog — Now I Need Your Vote!

If you enjoy this blog, I’m hoping to call in a favor — it will take less than 10 seconds I promise.

After lovingly writing this blog for 3 years, I’m thrilled to share that it has been selected by the Expert Institute as a nominee for 2015 Best Legal Blog!

Now though I need your vote as the winner will be selected by the readers.

So, can you please visit this page and click the “thumbs up” button to register your vote?

Thanks in advance for your vote!

Workplace Investigator Sindy Warren Invited to Present to EEOC Task Force

Sindy Warren, Workplace InvestigatorEarlier this year, the EEOC announced the formation of the Select Task Force on the Study of Harassment in the Workplace.  Its purpose is to examine the problem of workplace harassment in all of its forms and look for ways by which it might be prevented and addressed.

The Task Force is being co-chaired by EEOC Commissioners Chai R. Feldblum and Victoria A. Lipnic and is comprised of 16 members from around the country, including representatives of academia and social science; legal practitioners on both the plaintiff and defense side; employers and employee advocacy groups; and organized labor.

As President of Workplace Investigations Group (“WIG”), I am thrilled to announce that WIG member Sindy Warren, Esq. has been invited to present at an upcoming public hearing that is being held by the Task Force.  Membership in WIG is limited to attorneys with 10+ years of employment law experience and who meet WIG’s Expert Qualification Criteria.  They are all also committed to meeting the Responsibilities of WIG Expert Investigators.

Sindy Warren, Esq. is the principal for Warren & Associates in Cleveland, Ohio and conducts workplace investigations, creates and presents training programs on a wide variety of employment law and human resources issues, and acts as an as-needed human resources department for private and public employers, both large and small, throughout Northeast Ohio and nationally.  She has investigated many employee complaints, including complaints of harassment, discrimination, retaliation, fraud and other workplace misconduct. The EEOC sought Sindy out based on her years of experience investigating issues of harassment in the workplace.

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workplace investigations groupWorkplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial internal investigations.  All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny.  Click here for information on upcoming training in Washington D.C., Miami, FL, Las Vegas, NV, Chicago, IL, Cincinnati, OH, St. Louis, MO, and Newton, MA.

Rookie Mistake: NFL Ignored Conflict of Interest in Deflategate

Rookie Mistake by NFLThe NFL’s decision to use the same law firm to both conduct the “independent” investigation in Deflategate and to advocate for the NFL in the subsequent lawsuit was a rookie mistake.

In fact, I think that the judge’s decision today overturning the 4-game suspension can be traced directly back to that rookie mistake.  Why?  Because that key decision created a conflict of interest at the law firm: Was the law firm’s role one of independence or one of advocacy?  You can’t be both, at least as a lawyer.

Here’s how I explained the conflict of interest in my blog of July 29th:

“Here, it seems clear, at least to this attorney, that the NFL has placed the adequacy, reasonableness and independence of the Wells investigation directly at issue. As such, Brady and the NFL Players Association should have been provided with production of the contents of the Wells investigation file, including his communications to/from witnesses interviewed as well as to/from the NFL and others consulted during the investigation process. It is only by allowing the opportunity to review the full investigation file that they can evaluate the adequacy, reasonableness and independence of the Wells investigation.”

The federal judge who heard the lawsuit agreed with me, noting that the firm’s “role in this case seems to have “changed” from “independent” investigators to NFL’s retained counsel at the arbitral hearing.”  The judge was concerned that

“[a]mong other things, this change is roles may have afforded Goodell (and Pash) greater access to valuable impressions, insights, and other investigative information which was not available to Brady.”

Ya think?

This begs the question, of course, why would the NFL and its law firm (Paul, Weiss – a prestigious and large firm) make such a rookie mistake? One word:

Money

First, the law firm would lose out on what I can only suspect were significant legal fees associated with representing the NFL during the arbitration hearing and subsequent legal appeal if they referred the NFL to another law firm to handle those matters. These legal fees would be in addition to the reported $3+ million in fees paid to the firm to conduct the “independent” investigation. Second, law firms hate to refer their clients to other law firms because there is always the risk that the client will like the other firm better and they’ll lose the client on future matters.

As Paul Weiss – the law firm at issue here – scrapes itself off the floor after being handed such a public loss, they may also be well served to call their malpractice carrier and perhaps brace for ethics complaints against several of their attorneys.  Although the New York Lawyer’s Code of Professional Responsibility does not appear to require the disqualification of the entire Paul Weiss law firm because one of its partners (Ted Wells) was a witness in the litigation, it does seem that Paul Weiss would have been, at minimum, ethically bound to advise the NFL of the disadvantages of retaining the firm to conduct both the independent investigation and then serve as its litigation counsel.  The question, of course, is whether the firm did advise the NFL of those potential disadvantages and the NFL decided to use the same firm despite those disadvantages.

Here’s my bottom line for lawyers and law firms asked to serve as both independent investigation counsel and litigation counsel:  Just say no.

As this case clearly illustrates, the disadvantages to your client are significant.  Instead, encourage your clients to retain either separate litigation or investigation counsel and consider consulting the national directory of experienced and well-qualified attorney investigators that is readily available at  Workplace Investigations Group.  

Addendum:  As author Sue Reisinger pointed out in her article “Judge Knocks Air Out of NFL’s Deflategate Probe,” the question of “what is an independent investigation was also at issue in the General Motors Co. faulty ignition switch scandal last year, when GM hired a law firm that had been traditionally close to the company to conduct its internal probe. GM also named its then-general counsel Michael Millikin as co-lead investigator, even though Millikin’s legal department was at the heart of the scandal.”

 

 

 

 

5 Privilege Lessons for Employers from Deflategate

5 Privilege Tips in Workplace InvestigationsAs I wrote about earlier this week, among the challenges Tom Brady is making in the appeal of his 4-game suspension is a challenge to the NFL’s assertion that the investigation file and the communications between the NFL and the attorney who conducted the Deflategate investigation are privileged. According to media coverage, Tom Brady requested a copy of the investigation file and of the communications between the NFL and Wells as a part of his appeal and the NFL refused asserting the attorney-client privilege.

Brady has now appealed and the suspension will be reviewed and decided by a federal judge unless the parties can resolve their own dispute through negotiations or mediation.

Deflategate highlights a recurring issue that arises when employers retain an attorney to conduct an attorney-client privileged internal investigation into allegations of workplace misconduct: What happens to the privilege if the employer later wants to rely on the results of the privileged investigation to defend the business decision it made as a result of that investigation?

As I explained in my earlier blog, courts generally have held that employers waive the privilege where they rely on the investigation as an affirmative defense in subsequent litigation.

Deflategate stands as an important reminder to employers to understand the scope of the attorney-client privilege, and to take appropriate steps to avoid unintended waivers of the privilege in connection with workplace investigations.

5 Tips for Preserving the Privilege & Avoiding Inadvertent Waiver

  1. If it is anticipated that the workplace investigation may be raised as a defense to a legal claim or otherwise voluntarily disclosed, the employer should consider retaining an investigating attorney different than its regular legal counsel. This will make it easier for the employer to limit its waiver of the privilege to the fact-finding investigation without risking a court later finding that the waiver was broader and the employer inadvertently waived the privilege as to other matters on which the investigating attorney has provided legal advice to the employer.
  1. Avoid having the investigating attorney participate in communications between the employer and its regular counsel regarding matters of legal advice. To be even more granular and mitigate the risk of an inadvertent waiver, the employer’s regular legal counsel should consider limiting his or her communications with the investigator to (i) listening to (or receiving) the investigator’s report(s) and (ii) asking follow-up questions of the investigator. Moreover, the employer’s regular counsel should not disclose to the investigator any legal advice that counsel provided to his or her client.
  1. Employers and their regular counsel should take the time to define carefully the scope and responsibilities of the participants in the investigation. By taking the time to identify and insulate those who will investigate the facts from those who will make employment decisions based on those facts, a court deciding whether communications with counsel are privileged will be able to distinguish between communications regarding the fact-finding process as compared to communications regarding the decision-maker’s assessment of the facts.
  1. The employer and investigating attorney should take steps to make clear that the investigation is being conducted to obtain legal advice. This includes advising all witnesses interview of the legal purpose of the investigation and marking materials as “PRIVILEGED AND CONFIDENTIAL.”
  1. The employer should treat as confidential all investigation-related materials and limit distribution.

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workplace investigations groupWorkplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial internal investigations.  All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny.  Click here for information on upcoming training in Houston, and Washington D.C. 

 

NFL Criticized for Using Privilege as Both Sword & Shield in Deflategate

NFL Sword & Shield PrivilegeYesterday, the NFL issued a 20-page decision upholding the four-game suspension of Tom Brady, the star quarterback of the New England Patriots.

Brady’s agent, Don Yee, quickly attacked the decision saying the appeal lacked in procedural fairness:

“The appeal process was a sham, resulting in the Commissioner rubber-stamping his own decision. For example, the Wells investigative team was given over 100 days to conduct its investigation. Just days prior to the appeal hearing, we were notified that we would only have four hours to present a defense; therefore, we didn’t have enough time to examine important witnesses. Likewise, it was represented to the public that the Wells team was ‘independent’; however, when we requested documents from Wells, our request was rejected on the basis of privilege. We therefore had no idea as to what Wells found from other witnesses, nor did we know what those other witnesses said.”

In an article earlier today, journalist Daniel J. Flynn picked up on Yee’s criticism and questioned the NFL’s “gamesmanship.” Specifically, Flynn asked

“How can the NFL simultaneously characterize Ted Wells as “independent” and correspondence related to his investigation as “privileged” because of an attorney-client relationship?”

Great question.

The answer: I don’t think the NFL’s assertion of the attorney-client privilege will withstand legal scrutiny by the Federal Court in New York, which has been asked to affirm the NFL’s decision. Here’s why.

The Wells Investigation Likely Attorney-Client Privileged

The attorney-client privilege is the “oldest confidential communications privilege known to the common law.”  It protects confidential communications made by clients, including corporate clients like the NFL, to their attorneys in order to obtain legal assistance or advice.

In the context of an investigation like the one the NFL retained attorney Ted Wells, there are two questions relative to the privilege:  (1) whether Wells was serving in his “capacity of legal advisor;” and (2) wether the NFL waive the attorney-client privilege by sharing the Wells’ investigation report publicly and repeatedly touting its independence.

In this case, I think it’s fair to say that the answer to the first question is yes.  When Wells conducted the investigation he was acting his capacity as an attorney and the investigation, investigation file and investigation report were, therefore, protected from discovery by Brady and the NFL Players Association.  However, that doesn’t end the legal analysis.

The NFL Likely Waived the Attorney-Client Privilege

The more difficult hurdle for the NFL to overcome will be to convince the judge that it did not waive the attorney-client privilege when it shared the investigation report publicly and repeatedly assured the public that the Wells investigation was independent, full and fair.

The legal case law in this area has largely developed in the context of employment discrimination cases.  In those cases, employers who invest in the expense of retaining an attorney to conduct and attorney-client privileged workplace investigation will often want to use that investigation as a defense to any subsequent discrimination lawsuit.  In doing so though, they are generally held to have waived the protection of the attorney-client privilege.

Brady Should Have Been Allowed to Review Wells’ Investigation File to Test Independence of Investigation

Federal Courts in NY (where the NFL/Brady appeal is now pending) have held that employers cannot assert the attorney-client privilege while simultaneously relying on the investigation evidence and/or findings in defense of a discrimination or harassment claim. [i] In rejecting the employers assertion of the privilege in these situations, the courts have said that the employer was attempting to use the privilege and both a sword and a shield and “this it may not do.” [ii]

In reaching this conclusion, the courts have pointed out that equity requires that a plaintiff as well as the court be permitted to explore the parameters of the investigation to evaluate the adequacy, reasonableness and independence of the investigation.

Here, it seems clear, at least to this attorney, that the NFL has placed the adequacy, reasonableness and independence of the Wells investigation directly at issue. As such, Brady and the NFL Players Association should have been provided with production of the contents of the Wells investigation file, including his communications to/from witnesses interviewed as well as to/from the NFL and others consulted during the investigation process. It is only by allowing the opportunity to review the full investigation file that they can evaluate the adequacy, reasonableness and independence of the Wells investigation.

[i] See McGrath v. Nassau Health Care Corp., 204 F.R.D. 240 (E.D.N.Y. 2001); Brownwell v. Roadway Package Sys., Inc., 185 F.R.D. 19 (N.D.N.Y. 1999).

[ii] Brownwell v. Roadway Package Sys., Inc., 185 F.R.D. 19, 25 (N.D.N.Y. 1999).

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workplace investigations groupWorkplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial internal investigations.  All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny.  Click here for information on upcoming training in Houston, and Washington D.C.