Choice of Forum Critical in the Gender Bias Class Action Filed Against Greenberg Traurig

On Monday, Greenberg Traurig, LLP and one of its former shareholders, Francine Friedman Griesing, drew their respective lines in the sand.  Greenberg’s line was in the form of a Petition to Compel Arbitration filed in the United States District Court for the Eastern District of Pennsylvania.  Griesing’s line was a gender bias Class Action Complaint demanding a jury trial filed in the United States District Court for the Southern District of New York.

Regardless of whether you are on the plaintiff’s side or the defendant’s side of the proverbial line in the sand these two lawsuits raise significant issues that will be watched closely by members of the employment law bar and female lawyers across the country.  The choice of forum promises to be one of the most important legal issues as the answer will determine whether the case will go forward to a public jury trial or get resolved in a private arbitration.

In the memorandum in support of its petition to compel arbitration, Greenberg asserts that Griesing entered into a valid agreement waiving her right to a jury trial and requiring her to arbitrate any disputes or claims concerning her employment with Greenberg.  Obviously, Griesing disagrees with Greenberg’s argument as is evidenced by the filing of her lawsuit seeking a jury trial.

While as a general matter after AT&T Mobility v. Concepcion, it is well settled law that arbitration contracts are enforceable and cannot be invalidated just because they include a provision prohibiting class actions, a case currently pending in the United States Court of Appeals for the Second Circuit distinguishes pattern or practice class actions under Title VII from other types of class actions.  In Lisa Parisi v. Goldman, Sachs & Co., the district court held that the arbitration clause Parisi had signed was unenforceable because to enforce it would deprive her of her substantive right to bring a pattern or practice class action under Title VII.  Specifically, the district court reasoned as follows:

“[Plaintiff’s] invididual claims are subject to an arbitration clause signed as part of her employent agreement, and, pursuant to that agreement, Goldman Sachs cannot be required to arbitrate on a class basis.  However, because an arbitration clause may not be enforced if it precludes the vindication of substantive rights, and because a pattern or practice claim under Title VII can only be brought in the context of a class action, [plaintiff’s] Title VII claim cannot be committed to arbitration lest she be deprived of her substantive rights.”

To date, I’ve been unable to obtain a full copy of the Shareholder’s Agreement in which the arbitration clause at issue is contained. However, whether the agreement is enforceable, I suspect, will involve issues similar to those being argued in the Goldman Sachs appeal.

In addition to the arguments being litigated in the Goldman Sachs case and likely to be litigated in the Greenberg case, the type of pre-dispute mandatory and binding arbitration agreement to which Greenberg is referring has also been the subject of an on-going public policy debate and periodic legislative efforts, such as the Arbitration Fairness Act, to make pre-dispute arbitration agreements unenforceable.  In discussing this debate, however, it is important to distinguish the type of pre-dispute mandatory arbitration agreement at issue in the Greenberg and Goldman Sachs cases from post-dispute agreements to use arbitration, mediation or some other form of alternative dispute resolution.

ADR as a general matter is very useful and helps clear court dockets, provide swifter resolution of disputes, and reduce legal fees.  When an ADR agreement is entered into post-dispute, it is also clearly voluntary and done at a time when the employee and employer can make a meaningful evaluation of the legal dispute and select the dispute resolution process that will be most effective.

By comparison, the National Employment Lawyers’ Association (“NELA”) calls the type of pre-dispute mandatory, arbitration contract at issue in the Greenberg gender bias class action “forced arbitration” and “an assault on civil and workers’ rights” arguing that these types of agreements create a “[d]eck stacked for employers and against employees.”  In addition to creating a deck stacked against employees, NELA highlights the following problems with the type of forced arbitration agreement that Greenberg is asking the court to enforce against Griesing:

Not voluntary.

While employers can choose forced arbitration, employees must sign the arbitration documents provided by their employers if they want to get a job or to keep the job they have. Even if they don’t sign the documents, the courts generally “deem” employees to have “agreed” to arbitration if they continue to work for their employer after having been informed of the arbitration requirement. This happens even when employees specifically refuse to agree.

No informed consent.

Even if employees could refuse arbitration without losing their jobs, it is virtually impossible for them to make an informed choice about arbitration when they have no actual dispute with their employer. Few people can meaningfully evaluate the legal mechanism they would want to use to resolve some unspecified problem that might or might not arise in the future. Many employees have never heard of arbitration, much less understand its implications.

No accountability.

Forced arbitration allows Wall Street companies and other big businesses to escape responsibility if they do something wrong to their workers. In fact, the U. S. Supreme Court recently ruled that arbitration can be used to eliminate class actions altogether, except in the rare instances in which employees can prove that bringing a class action is the only way they can vindicate their rights.

Important legal protections undermined.

Forced arbitration can be and is imposed for all kinds of workplace violations – not only civil rights and wage and overtime protections, but also laws that ensure equal pay for equal work, family and medical leave, fair benefits and pensions, and protections for employees who blow the whistle on employer waste and fraud. Even America’s returning veterans cannot enforce their reemployment rights if their employers use forced arbitration.

It is expensive.

Contrary to conventional wisdom, arbitration can be very expensive. Arbitration companies charge high fees just to begin the process. The arbitrator’s time must be paid for, too – often to the tune of hundreds of dollars an hour.

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Workplace Investigations Group has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

 

 

 

 

Social Media and Discovery: Post with Caution

With over one billion active Facebook users and 500,000,000+ Twitter accounts, it is no surprise that the discovery of messages, status updates, wall posts, tweets and pictures shared on social media has become a battle ground in sexual harassment and discrimination lawsuits.  Given that over half of social media users are posting from their mobile devices, individuals are not only sharing large amounts of relatively personal information on-line but they are also increasingly sharing that information in real-time with just a click.  As such, individuals are often failing to think through how the information might be perceived or used, including in a potential discrimination or harassment lawsuit.

A decision earlier this month by the United States District Court for the District Court of Colorado is illustrative of both the social media discovery battleground and the failure of individuals to post to social media with caution.  In EEOC et. al. v. The Original HoneyBaked Ham Company of Georgia, Inc., the EEOC filed a sexual harassment and retaliation lawsuit on behalf of ~20 female employees.   In the complaint, the EEOC alleged that Wendy Cabrera, a manager at the Highlands Ranch, Colorado store, and a class of female employees, suffered from repeat and offensive unwanted sexual comments, innuendos, and physical touching by their regional manager despite frequent protests. Additionally, the EEOC claimed, a number of the women were disciplined or discharged by the company for complaining up the chain of command about the treatment.

In discovery, the employer sought copies of the information the women had shared in their various social media accounts arguing that it was relevant to damages as well as to the credibility and bias of certain of the women.  The EEOC objected to the discovery requests based on privacy concerns and also argued that the employer was on a fishing expedition.

Court’s Analysis

In beginning its analysis, the court likened the information the women had shared on social media to a file folder titled “Everything About Me,” the contents of which needed to be reviewed for relevant information or information that may lead to the discovery of admissible evidence.  He noted that the fact that the information existed in cyberspace on an electronic device instead of a hard-copy file folder was a logistical and perhaps a financial problem but did not preclude it from being otherwise discoverable in a lawsuit.

In concluding that the contents of the “Everything About Me” file folders contained discoverable information the court pointed to the following information posted by Plaintiff Cabrera on her Facebook account as “potentially relevant in this lawsuit:”

  1. A photograph of Plaintiff Cabrera wearing a shirt with the word “CUNT” in large letters across the firm (relevant because plaintiff had alleged the term was used pejoratively against her and because she claimed the use of the term offended her);
  2. Musings about her emotional state caused by the loss of a beloved pet and a broken relationship;
  3. Writings about her positive outlook on life post-termination;
  4. Writings about her self-described sexual aggressiveness;
  5. Statements about actions Plaintiff engaged in as a supervisor – including about how she terminated one of the other female employees who is a class member in the lawsuit;
  6. Sexually amorous communications with other class members; and
  7. Plaintiff’s post-termination employment and income opportunities and overall financial condition.

Special Master In Camera Review 

Although the judge concluded that the social media being requested by the employer contained discoverable information, he also recognized that the social media contained other information not relevant to the lawsuit.  In an effort to balance the privacy concerns raised by the EEOC with the right to discovery by the employer the court stated his intent to appoint a forensic expert to serve as a special master.  Under the process established by the court, the female employees were ordered to provide the following directly and confidentially to the special master:

  1. Any cell phone used to send or receive text messages from January 1, 2009 to the present;
  2. All necessary information to access any social media websites used by such person for the time period January 1, 2009 to present;
  3. All necessary information to access any email account or web blog or similar/related electronically accessed internet or remote location used for communicating with others or posting communications or pictures, during the time period January 1, 2009 to present.

Implications for Employers and Employees

Social media is here to stay.  It is being used by managers, individual contributors and hourly employees.  Personal and business information is being shared digitally and on social media using business and personal electronic devices.  It is being generated constantly and often with seemingly little thought – from the office, the break room, the manufacturing floor, business trips, happy hours, holiday parties, birthday parties, personal residences, vacations …..

This ruling is likely just one of many we can anticipate as the legal system works through the thorny and novel issues presented by social media.  It serves as a good reminder to employees that everything they do and say electronically and in social media will likely be scrutinized should they file a lawsuit.  It is also worth noting, however, that (as my mother would say) “what’s good for the goose is good for the gander” and employers should be delivering similar reminders to their managers.  In this age of electronic gadgetry and social media the line between personal and business is getting much more difficult to navigate.  Employers and employees need to proceed with caution.

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Workplace Investigations Group has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

Workplace Investigations: The Employee’s Lawyer’s Perspective

How do lawyers who represent employees decide which of the employees who contact them to represent?  According to Nina Pirrotti, an attorney with Garrison, Levin-Epstein, Richardson, Fitzgerald & Pirrotti, P.C., one of her “first lines of inquiry in evaluating a prospective client’s case is to review the employer’s investigation.”  Ms. Pirrotti scrutinizes an employer’s investigation “both procedurally and substantively to determine whether the investigations themselves are a product of further discrimination and/or retaliatory treatment by the employer.”

So, what specifically is Ms. Pirrotti scrutinizing when she reviews an employer’s investigation or put another way, how does she decide whether to sue the employer?   What can employers learn from understanding her perspective?

Employers faced with the need to investigate an allegation of workplace misconduct like retaliation, discrimination or harassment need to understand that each step of the investigation will likely be reviewed not only by an employee’s attorney like Ms. Pirrotti but also by a judge and jury should a lawsuit be filed. Good employers understand this reality and take these factors into consideration when they decide who should conduct the investigation.  As such, they select well-trained, unbiased investigators who have the time available to devote to conducting a thorough and timely investigation.

Here are the top five red flags Ms. Pirrotti looks for when she reviews a workplace investigation.

Biased Investigators

According to Ms. Pirrotti, anemployer who uses an investigator who has a stake in the outcome or a personal relationship with any of the witnesses involved in the investigation does so at its peril.”  From Ms. Pirrotti’s perspective, investigations conducted by a biased investigator may compromise an employer’s defense even more than no investigation because they “convey a loud and clear message to the fact finder: the investigation was orchestrated by the employer to justify a preordained decision.”

Incomplete/Delayed Investigations

Ms. Pirrotti says “investigators who fail to explore all reasonable leads also provide tremendous fodder for the plaintiff’s employment lawyer.”  She views such failures as being evidence of the “employer’s disinterest in learning the truth.”

Credibility Assessment Problems

Ms. Pirrotti says she is surprised by how often she reviews investigations where the investigator rendered an inconclusive finding because the investigator failed to properly assess the credibility of the witnesses.   Good and well-trained investigators, recognize that credibility assessments are not only a critical part of their responsibility but also understand the importance of documenting how such credibility assessments were made.

Flawed Investigatory Techniques

Ms. Pirrotti views witness statements that are virtually identical in significant respects or  that have the same “voice” as evidence that the investigator did not use neutral interrogation tactics.  At trial, she would argue that an investigator who used leading questions that suggested the answer or who used confrontational, accusatory questions that intimidate witnesses, was more concerned about defending the employer vs. conducting a neutral, unbiased investigation in an effort to learn the truth.

Failure To Preserve Records

In cases where the employer has failed to preserve documents either reviewed or generated during an investigation, Ms. Pirrotti views this as further evidence potentially bolstering a finding of discrimination or retaliation.  At trial, she would argue that the employer’s failure to preserve the documents is evidence that the documents destroyed would have been unfavorable to the employer.

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

 

 

Seven Tips for Selecting an Investigator to Conduct A Fair, Unbiased and Professional Workplace Investigation

I spoke this week at the HR Star Conference here in Atlanta and at the conference had a great discussion with some HR professionals on the importance of conducting fair, unbiased and professional workplace investigations.  One of the HR managers mentioned that her company recently received a complaint from a current employee complaining that he was being subjected to a racially hostile work environment.  As I regularly conduct third party, neutral investigations into allegations of workplace misconduct and serve as an expert witness on workplace issues, our conversation turned to the benefits of using an independent investigator as compared to conducting the investigation internally by HR or by the employer’s regular legal counsel.

We all agreed that promptly investigating allegations of workplace misconduct, like discrimination, harassment, retaliation, and hostile work environment, is not only a good business practice but is also important legally.  An employer demonstrates (to its employees and enforcement agencies) good faith and adherence to anti-discrimination and fair treatment policies and laws by promptly investigating issues.  However, unless the investigator is independent and, perhaps more importantly, perceived as independent every conclusion drawn by the investigator is going to be questioned by employees and potentially by enforcement agencies and perhaps plaintiff’s counsel.

A recent  jury award of $313,206 to an employee who sued alleging retaliation demonstrates the importance of the perception of a fair and impartial investigation.  In discussing the jury’s award after the case several jurors said that they considered the plaintiff to have been the victim of an unfair and biased investigation process.  Here is an excerpt from a newspaper article discussing the case:

“A grievance is supposed to be investigated fairly, without any bias,” said juror Debi Mitchell. “This was not a fair and impartial investigation … I’m glad we got to show that their behavior was wrong. I hope they can change the way they treat employees and create a better work environment.”

It is also important for employers to recognize that if they choose to use their regular legal counsel (either in-house or outside counsel) to conduct a workplace investigation that their regular legal counsel could become a fact witness in any future litigation.  If the investigating attorney becomes a fact witness, any applicable attorney-client privilege would likely be waived.  Moreover, the attorney and his or her law firm would be conflicted out from the ability to represent the employer in the litigation.

Recognizing the importance that an investigation be impartial and objective and anticipating that the complaint has the potential to end up in litigation, the person selected to conduct the investigation should:

  1. be someone the parties view as impartial;
  2. be familiar with applicable employment laws and the employer policies;
  3. have the time available to devote to conducting a prompt and thorough investigation;
  4. have investigation experience and good interviewing skills;
  5. be someone with good communication skills who will be an effective and credible witness should the complaint result in litigation;
  6. recognize the importance of confidentiality and be able to maintain confidentiality; and
  7. be able to deliver a complete and accurate report.

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

Supreme Court Signals It May Grant Cert in SOX Whistleblower Case

In an Order issued earlier today, the Supreme Court of the United States invited the Solicitor General “to file a brief … expressing the views of the United States” in a case testing the scope of the Sarbanes-Oxley (“SOX) retaliation prohibition against whistleblowers who are employees of publicly-traded companies.  The case is Lawson v. FMR LLC and the Court will decide whether to hear the case after it considers the Solicitor General’s submission.

Currently, there is a conflicting interpretation between the United States Court of Appeals for the First Circuit (ME, MA, NH, PR, RI) and the Administrative Review Board of the United States Department of Labor on the issue of whether SOX whistleblower protections encompass non-public companies that contract services to public companies.

First Circuit’s Decision In Lawson

In Lawson, the First Circuit, in an opinion dated February 3, 2012, held that only employees of publicly traded companies enjoy SOX whistleblower protection. The plaintiffs worked for private companies that provided services under contract to publicly traded companies. Although the district court denied the employer’s motions to dismiss, holding that SOX’s whistleblower protections reached employees of private agents, contractors and subcontractors in private companies, the First Circuit granted interlocutory review and ultimately reversed the district court decision.

DOL Decision in Spinner

In Spinner, the plaintiff was a Certified Public Accountant who alleged he was fired from his position at an internal audit firm for reporting internal control and reconciliation problems at a publicly traded client of the audit firm.  The plaintiff filed a complaint with the Occupational Safety and Health Administration.  OSHA investigated and concluded that the plaintiff would have been fired even if he had not reported the problem.

The plaintiff appealed the case to an administrative law judge, who ruled in favor of the employer, holding that its employees were not covered by SOX’s whistleblower provision because the internal audit firm was not a publicly-traded company.  On appeal, however, the Administrative Review Board found the holding in Lawson to be non-controlling and declined to follow it. Rather, the Administrative Review Board, in an opinion dated May 31, 2012, ruled SOX covers employees who are employed by contractors for publicly-traded companies.

Implications for Employers

Retaliation and whistleblower claims are among the fastest growing type of litigation facing employers today. The conflict in interpretation of the SOX whistleblower law between the DOL and the First Circuit is an example of the quickly changing legal landscape in this area and a reminder that employers of all sizes (publicly traded and not) need to ensure they have well-drafted policies and processes in place for responding to whistleblower concerns.

It is also critical that employers be prepared to conduct workplace investigations into these concerns that do not themselves create additional problems such as retaliation claims.  Employers who do not have professional staff or in-house counsel with the experience, knowledge, and expertise to conduct legally defensible workplace investigations, should retain an outside investigator and/or outside counsel who possesses these qualifications.

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Workplace Investigations GroupWorkplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

 

Employer’s “Shockingly Thin” Investigation into Anonymous Harassment = $3.5 Million in Punitive Damages

The recent reinstatement of a $3.5 million award of punitive damages by the United States Court of Appeals for the Seventh Circuit highlighted the importance of responding promptly, thoroughly and fairly to employee complaints of harassment, even where the harassers are unknown.   It also serves as a reminder that the appropriateness of an employer’s response to harassment will be measured against the gravity of the harassment and that where harassment persists an employer must “progressively stiffen” its efforts.

Lessons learned for employers and a copy of the court’s opinion are at the end of the blog.

Three Years of Anonymous Harassment & Death Threats

The events that produced this case started in early 2002 when someone put sugar in the gas tank of Otto May’s car.  May was a pipefitter at Chrysler’s assembly plant in Belvedere, Illinois.  Over the next three years, Otto May was the target of over 50 anonymous instances of harassment and death threats.   In addition to sugar being placed in the gas tanks of two of his cars, the harassment ranged from graffiti at the plant to death-threat notes in his tool box to punctured tires to a bizarre instance of a dead bird wrapped in toilet paper to look like a Ku Klux Klansman (complete with pointy hat) being place in May’s work station.

Here are a few examples of the disturbing and threatening messages:

  • “Otto Cuban Jew fag die”
  • “Otto Cuban Jew muther fucker bastard get our message your family is not safe we will get you good Jew is a dead Jew say hi to your hore wife death to the jews heil Hitler [swastika]”
  • “death to the Cuban Jew”
  • “no one can help you fucken Cuban Jew We will get you Death to the Jews Cuban fag Die.”
  • “a good Jew is a dead Jew”

May contacted the local police, the FBI, the Anti-Defamation League and complained repeatedly over the three years to Chrysler.

The Employer’s Response

     Allowed to Park in Salaried Lot

May complained to security at the Chrysler Belvedere plant and to the local police in February of 2002.  Three months later when his tires were punctured, he again made a report to Belvedere plant security and the local police.  Because he didn’t receive a response from plant security locally, May also complained to human resources at Chrysler’s headquarters in Michigan.  Ten days after he contacted Chrysler’s headquarters, Kim Kuborn, a human resources supervisor at the Belvedere plant contacted May and told him he could park in the salaried lot, which is monitored by cameras.  This solution did not satisfy May, however, because a Chrysler security officer told him that some of the cameras did not record, that some did not work and that even the ones that did work were not monitored.

     Meetings Held With All Three Shifts About Harassment Policy

The threatening messages (including graffiti, printed chain emails, hand-written notes) started in the first half of 2002.   May complained to his supervisor, labor relations and security and provided Chrysler with the notes.

In September of 2002, the head of human resources and the head of labor relations for the Belvedere Plant held meetings with all three shifts of the skilled trades – about 60 people.  Some of the workers were upset about the meeting and complained that the skilled trades were being “singled-out” and that they wouldn’t be able to have “fun” at work anymore.  May was upset because only 60 of the more than 1000 plant employees who had access to the areas where the notes and graffiti targeting him was found were included in the meetings.  May also asked Chrysler to install surveillance cameras and swipe-key door locks to monitor who was coming and going from particular areas.

     Staff Advisor from Chrysler’s Corporate Headquarter’s Diversity Office Visits Plant

Just a few days after the meetings described above, there was more threatening graffiti and at least five more instances of graffiti in October and November of 2002. After receiving another menacing note in his toolbox on December 7, 2002 and feeling like Chrysler was doing nothing to stop the harassment, May contacted the Anti-Defamation League.  In a letter dated December 26, 2002, the Anti-Defamation League wrote a letter to Chrysler’s General Counsel in Michigan informing him that “Mr. May has reportedly been the victim of numerous death threats placed in his toolbox, scrawled on his lunchbox and in the freight elevator as well as in other areas.”  The League encouraged Chrysler to take all necessary remedial action.

The letter to the General Counsel was forwarded to Scott Huller, a Staff Advisor in Chrysler’s Corporate Diversity Office, whose responsibilities included investigating civil rights issues at Chrysler’s manufacturing facilities   Huller traveled from Michigan to the plant in Illinois and met with May On January 16 and 17, 2003.  May told Huller he feared for his life and was distressed and depressed.  May again asked that surveillance cameras be installed.

Huller asked May for a list of suspects and May gave him a list of nineteen employees.  Huller returned to Michigan without interviewing any of the suspects or doing any further investigation.  The only action Huller appears to have taken after meeting with May was to give the list of the nineteen employees to Kim Kuborn, a HR supervisor at the Belvedere plant and notably also the wife of one of the suspects identified by May.

     Plant Entry and Exit Data Analyzed

Kuborn took the nineteen names given to her by Huller (including her husband) and created a spreadsheet.  She then used the plant entry and exit data to determine which of the 19 suspects was in the plant at the times when the incidents might have occurred.

     Protocol Implemented for Handling Incidents Involving May

Sometime in 2003, Chrysler implemented a protocol for handling incidents involving May.  The protocol required that anyone who found graffiti or a note was to notify HR and security.  A picture would be taken and the incident documented.  If grafitti was involved, it was to be cleaned-up.  Kuborn was responsible for keeping copies of the pictures and documentation in a binder.

     Handwriting Expert Hired

In May 2003, Chrysler’s lawyers retained a forensic document examiner in an effort to identify the anonymous person(s) responsible for the graffiti and notes.  The expert thought it likely that only one person was responsible.  Based on a review of daily entries in plant logbooks, the expert asked for handwriting samples from sixty employees.   Although the expert continued his analysis throughout 2004 and 2005, he was never able to reach a conclusion about who did it.

The Court’s Analysis

     Jury and Trial Judge

At the trial, the jury was asked to decide four issues:

  1. Was someone other than May himself responsible for the harassment?
  2. Did Chrysler take steps reasonably calculated to end the harassment?
  3. Did Chrysler recklessly disregard May’s federally-protected rights?
  4. What amount of damages, if any, should be awarded to May.

After a seven-day trial, the jury found for May and awarded him $709,000 in compensatory damages and $3.5 million in punitive damages.  Chrysler filed post-verdict motions asking the trial judge to set aside the jury’s verdict.  The trial judge determined that the jury’s compensatory damages award of $709,000 was excessive and May decided to accept a reduction of the award to $300,000 to avoid a re-trial.  The trial judge also vacated the jury’s punitive damages award, finding that May failed to present sufficient evidence that Chrysler recklessly disregarded May’s federally-protected rights.  Both sides appealed.

     The Court of Appeals

In a strongly worded opinion, the Court of Appeals affirmed the jury’s finding of liability and reinstated the jury’s award of $3.5 million in punitive damages.

     Basic Liability Analysis

In discussing Chrysler’s liability, the Court of Appeals was dismissive of Chrysler’s response during the first year of written threats and harassments, summarizing the company’s efforts as “They held a meeting.  They interviewed May.”  Similarly, the Court of Appeals was not persuaded by what it called “Chrysler’s behind-the-scenes” efforts to document the harassment, analyze the gate records and retain a handwriting expert.

The Court of Appeals also highlighted that the jury heard about “what Chrysler did not do,” including Chrysler’s failure to interview anyone on May’s list.  In discussing Chrysler’s failure, the Court explained:

“When an employee has been subjected to repeated threats over the course of many months and the employer has a list of names, the employer’s investigator should talk to some of those people – or at least a jury would not be irrational to think so.  And perhaps that would be asking too much if it had explained to the jury that it had a different approach to the investigation that was also reasonably likely to be effective … But the  jury heard nothing of the sort.  It heard that Chrysler documented the incidents and used gatering records to narrow the field of potential suspects.  In the face of repeated vicious death threats, a jury could conclude that Chrysler’s document-and-narrow approach was not good enough.”

In affirming the jury’s finding of liability, the Court also pointed to Chrysler’s failure to install even a single surveillance camera despite not only May asking them to do so but the police suggesting it as well.   The Court found Chrysler’s contention that the plant was too massive to cover it with cameras and that the union wouldn’t have allowed it any event to be undermined by Chrysler’s installation of a camera in 2008 to try to catch someone destroying company property.

     Punitive Damages Analysis

On appeal, Chrysler argued that it cannot be held liable for punitive damages because it made a good-faith effort to stop the harassment.  The Court of Appeals rejected this argument, stating that

“[a] good-faith effort at compliance, however, is not a matter of declarations about how much the employer cared about a victim of harassment or about how hard HR employees say they worked to rectify the situation.  When those declarations are belied by the employer’s actions, talking a good game will not immunize an employer from a judgment that it was reckless.”

The Court seemed particularly troubled by Chrysler’s attempts to show that May himself was responsible for the threatening graffiti and notes, noting that the “jury was presented evidence that Chrysler was not as concerned for May as it was about getting rid of him and keeping costs down.”  The Court of Appeals was also troubled with Kuborn’s (the HR person principally responsible for May’s case and married to one of the suspects) failure to recuse herself.

Interestingly, although the trial judge did not rule on whether the jury’s $3.5 million award of punitive damages was “grossly excessive” and, therefore a violation of due process, the Court of Appeals took it upon itself to ask the parties for supplemental briefing on that issue.  Presumably, this is because the Court of Appeals anticipates that Chrysler will appeal.  After acknowledging that the award is five times the original compensatory damages amount and eleven times the reduced amount, the Court concluded, “Chrysler’s long-term recklessness in the face of repeated threats of violence against May and his family is sufficiently reprehensible to support it.”

Lessons Learned for Employers

1.             Employers must be prepared to conduct workplace investigations in a prompt, thorough and fair manner.  This means not only responding promptly but also following-up on reasonable avenues of inquiry.  Here, Chrysler failed to interview even one of the list of suspects that it had asked May to provide.

2.             Choosing an impartial investigator is critical.  Here, Chrysler selected the wife of one of the suspects to take the lead in responding to May’s complaints.  That decision caused even the slightest discrepancy in the documented follow-up to take on sinister overtones.

3.             Transparency of investigatory process is important.  As I’ve discussed before on this blog, procedural fairness is an important theory for employers to understand and transparency of process is a critical aspect of procedural fairness.  Here, it seems that neither the jury nor the Court of Appeals gave Chrysler credit for any “behind-the-scenes efforts” to identify the harasser or stop the harassment.

4.             Think twice before ignoring a third-party expert’s “suggestion.”  Here, the police recommended installing a security camera to try to identify the anonymous harasser.  When evaluated in light of Chrysler’s subsequent decision to install a security camera to try to identify who was stealing company property, the decision to ignore the police suggestion seems especially problematic.

5.              Beware of blaming the victim.  Chrysler’s defense that May did it all himself was deemed by the Court to be “rather unsettling.”

Click here for a copy of the Court of Appeals decision in May v. Chrysler Group, LLC, (7th Cir. 2012).

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

3 Tips for Leveraging Differences in the Workplace

WinWinHR.com

As Barney sang on Barney & Friends, “everyone is special, everyone in his or her own way.”  In fact, it is our “specialness” that makes us human and creates the differences in values, thinking and philosophy that can cause conflict in the workplace.  It is also this “specialness” that presents an opportunity for growth and a competitive advantage for individuals and organizations able and willing to embrace differences and conflict.

So, how does one learn to “embrace” differences and conflict?  Here are 3 tips.

1.      “Name” the Conflict

While it might seem obvious, it is only human to try and avoid unpleasantness and most people think of conflict at work as unpleasant.  By “naming” the conflict, you put the issue on the table and open it up for discussion.

2.      Be Curious

Understanding the other person’s perspective is critical.  Having an attitude of curiosity enables you to explore the other’s perspective with an open mind. Avoid preconceived conclusions and take the time to inquire and truly listen to the other person’s concerns or underlying worries that have led them to take the position they are taking.  Using the “curiosity” approach to understanding the other person’s perspective encourages the exploration of ideas and potentially to a new and better approach.  This approach also fosters a winners and learners philosophy on teams vs. winners and losers.

3.      Focus on Facts Not Personalities

Research consistently finds a direct link between reliance on facts and low levels of interpersonal conflict in the workplace.  With facts, people tend to move swiftly to the central issues.  Absent facts, people instead tend to suspect others’ motives.

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Workplace Investigations GroupWorkplace Investigations Group has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

 

Best Practices for Assessing Witness Credibility in Workplace Investigations

One of the most important and often most challenging tasks of the workplace investigator is to make credibility determinations about witnesses.  Over the years, a common mistake I’ve seen investigators make in investigating allegations of workplace misconduct is failing to make findings of fact because they were not comfortable making the necessary credibility assessments where there were conflicting statements made by the people interviewed.   Good and well-trained investigators, however, recognize that credibility assessments are not only a critical part of their responsibility but also understand the importance of documenting how such credibility assessments were made.

Before I set forth some best practices for assessing witness credibility, I think it’s also helpful to revisit the “honest belief” defense.  Under the “honest belief” defense, if an employer can demonstrate that it had an honestly believed, nondiscriminatory reason for taking the employment action being challenged, an employee cannot establish that the offered reason is pretextual simply because the employee may be able to prove subsequently that the employer was wrong in its honest belief.   I don’t review the “honest belief” defense here as some type of “get out of jail free” card for employers but rather as a reminder of the standard of review that courts will use in reviewing an employer’s decision that is later alleged to be discriminatory.

So, how does an investigator assess witness credibility?  There is a lot of discussion in the literature on this topic, but one of the most pragmatic approaches I’ve suggested over the years is to turn to the pattern jury instructions in the relevant jurisdiction on witness credibility and use them as a guide.  Why?  It goes back to anticipating the “honest belief” defense discussed above.  The investigator is not charged with making factual findings beyond a reasonable doubt or that are 100% accurate, but rather making factual findings based on a well-done and thorough investigation.  The employer will then take or not take an employment action based on its “honest belief” of the facts as established by the investigation.  Utilizing the relevant jurisdiction’s standard jury instructions provides an easily available and defensible checklist should the investigator/employer later have to defend the process used to assess credibility.

Generally, an investigator will be able to locate the applicable pattern jury instructions with a simple “Google” search.  By way of example, I’ve set forth below the Eleventh Circuit Federal Court Pattern Jury Instructions for Criminal Cases (2010).   The Eleventh Circuit includes Georgia, Florida and Alabama.

Credibility of Witnesses

When I say you must consider all the evidence, I don’t mean that you must accept all the evidence as true or accurate.  You should decide whether you believe what each witness had to say, and how important that testimony was.  In making that decision you may believe or disbelieve any witness, in whole or in part.  The number of witnesses testifying concerning a particular point doesn’t necessarily matter.

To decide whether you believe any witness I suggest that you ask yourself a few questions:

• Did the witness impress you as one who was telling the truth?

• Did the witness have any particular reason not to tell the truth?

• Did the witness have a personal interest in the outcome of the case?

• Did the witness seem to have a good memory?

• Did the witness have the opportunity and ability to accurately observe the things he or she testified about?

• Did the witness appear to understand the questions clearly and answer them directly?

• Did the witness’s testimony differ from other testimony or other evidence?

Source:  http://www.ca11.uscourts.gov/documents/jury/crimjury.pdf

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Workplace Investigations Group has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

 

‘Tis the Season: Are You Ready for Political Conflict in the Workplace?

According to a survey by Career Builder, more than a third of employees discuss politics at work.   When the survey was done in March of this year, 46% anticipated they would discuss the presidential election this year with co-workers.  Of those workers who have discussed politics at work, 23% reported they had a heated discussion or fight with a co-worker, boss or someone else higher up in the organization.

In addition to the productivity drain, political conflict in the workplace also has the potential to increase liability risks when you consider some of the topics being debated this election:  Exhibit A – What is a “legitimate rape?”  Exhibit B:  Romney Ad:  Obama is waging “A War on Religion.”  It is easy to imagine a scenario where an employee is offended and depending on the circumstances points to something that was said during these debates as evidence of harassment or discrimination.

According to a poll conducted by the Society for Human Resource Management in 2008, only 25% of employers have a written policy addressing political activities in the workplace.  An additional 10% reported having an unwritten policy on political activities.

Recognizing that political discussion/debate is going to happen at work and will likely intensify over the coming weeks, employers might consider a company-wide communication that either reminds employees of the existing company policy on political activities at work or discusses more generally the importance of engaging in respectful interactions at work, including in any political discussions.  This is also an opportunity to remind employees of how to report workplace concerns and of the policy of non-retaliation.

“First, Do No Harm” – A Call For NLRB and EEOC Guidance

In reflecting on the proper role of confidentiality in workplace investigations following the Banner Estrella Medical Center NLRB decision, I am reminded of the fundamental principle all medical students are taught – “First, do no harm.”  This principle is a reminder to avoid making something worse with your medical intervention – especially when the intervention carries an obvious risk of harm but a less certain chance of a benefit.

In the context of investigations into alleged workplace misconduct, in particular into allegations of sexual harassment, the complaining employee often wants confidentiality.  Indeed, the EEOC has identified confidentiality as an “important element” of a harassment complaint procedure.

In Banner Estrella Medical Center, the NLRB reminded employers that they should not, in the name of conducting confidential investigations, unduly restrict an employee’s protected rights under the NLRA (as well as Title VII and other laws) to talk with each other about workplace conditions and job-related problems.  Unfortunately, the decision provided only limited guidance on how to decide when and to whom confidentiality instructions are appropriate.  The result is that employers and their employees who often want investigations to be confidential are, in some ways, left worse off in the wake of the NLRB’s “intervention.”

Regardless of what side of the debate you are on as it relates to the proper role of confidentiality in investigations, I think everyone can agree that there is no easy bright line rule on this one.  What employers and employees need is thoughtful guidance on this topic from both the NLRB and the EEOC.  In fact, what I’d like to see the two agencies do is work together to provide joint guidance on this topic given the complexity of workplace investigations and the employment laws.

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com