Social Media is Leveling Public Relations Playing Field for Disgruntled Employees

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Facebook, blogs, Twitter, on-line petitions – Social media is leveling the public relations playing field.  Gone are the days when big business controlled the media.  Today, a disgruntled employee can fight back using social media.  Using these new tools, former “water cooler” complaints can literally and quickly broadcast around the globe.

The recent firing of Virginia Commonwealth University volleyball coach James Finley provides a case in point.

On December 20, 2012, VCU issued a press release announcing that its “exhaustive investigation” into the non-renewal of Coach James Finely’s contract found that Coach Finley’s claim of sexual orientation discrimination was unfounded.  VCU President validated not only the findings of the report but the investigation process and said, “I continue to have confidence in the process that produced the report and in Ed McLaughlin as VCU’s athletic director.”

Coach Finley did not agree with the findings.  Unlike, however, employees in the pre-social media world who might simply have retained an attorney and filed a lawsuit, he and his supporters are fighting back using social media.  Here are two examples of their efforts.

Facebook Page:  Reinstate VCU Volleyball Coach James Finley

Shortly after VCU issued its press release, Coach Finley posted the following statement on Facebook:

I’m obviously disappointed in the outcome of VCU’s initial investigation into my discrimination complaint. I am dismayed by the poor quality of the investigative procedures followed and by numerous factual inaccuracies included in the report that appear to provide the basis for the conclusion reached. This is particularly disturbing since the report fails to address my complaint of discriminatory treatment, and the procedures followed provided me with no opportunity to respond to any of the erroneous information brought forward in the investigation to justify the action taken. In addition, I am concerned that the damage to me and my reputation from this flawed investigation is being magnified by disclosures of inaccurate information by persons associated with VCU. Despite VCU’s official statements that my complaint and the investigation are confidential personnel matters, there appears to be no effort by VCU to prevent disclosure to the media of information from the report or inaccuracies contained therein by persons on VCU’s payroll or under VCU’s control.

I am going to take time over the holidays to review with counsel all of the options available to challenge the report and its findings. I thank all of my many friends and supporters at VCU, in the Richmond community and across the country for your outpouring of love and support, and I ask for your patience as I carefully consider all of the options available and discuss with my family the best course for us to pursue going forward.”

Online Petition:  VCU President Michael Rao:  Reinstate Coach Finley!

There is also an online petition asking VCU President to “welcome Coach Finley back on campus.”  The petition was created on the site www.Change.org that describes itself as “the world’s largest petition platform, empowering people everywhere to create the change they want to see.”  As Change.org points out “[g]athering people behind a cause used to be difficult, requiring lots of time, money, and a complex infrastructure. But technology has made us more connected than ever.”

As I write this post, the Change.org site says there are “43,067 supporters” who have signed the following petition:

To:
Michael Rao, VCU President
We’re asking you to reconsider the decision made by VCU’s Athletic Director to fire Coach Finley. As a school built upon the values of inclusion and diversity, VCU has an opportunity to lead a national conversation to ensure that one’s work is judged solely by their success, not by their sexual orientation or gender identity. We urge you to overturn this decision and to reinstate Coach Finley in time to usher our volleyball team into another winning season!

Sincerely,
[Your name]

Insights for Employers
Now, perhaps more than ever, it is important that in addition to developing proper and effective EEO and anti-harassment policies, employers need to adopt effective policies and procedures for investigating workplace complaints. In today’s new world, an employee who is dissatisfied with an employer’s investigation into his or her concern is not limited to grousing to co-workers or quietly filing a complaint with the government or hiring a lawyer.
Smart employers recognize that it is no longer sufficient to comply simply with the minimal legal standards in responding to employee complaints.  Rather, they are working to implement policies and procedures for internal investigations that comply not only with the law but also adhere to the principles of procedural fairness. One of the key principles of procedural fairness is “voice” or the opportunity to participate in the review of the complaint.
In the VCU matter, one of Coach Finley’s primary criticisms of the investigation seems to be that he was given “no opportunity to respond to any of the erroneous information brought forward.”  Of course, given that the VCU investigation report has not yet been made public we have no way of evaluating for ourselves this claim.  It is worth noting, however, that the principles of procedural fairness (as well as good internal workplace investigation practice) would dictate that Coach Finley should have been provided the opportunity to have his “voice” heard before the final conclusions were reached in the investigation.
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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

86% of Your Employees Want to Jump Ship in 2013

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The statistics from the new ManpowerGroup survey will be the numbers touted in leadership, employee communications and human resources meetings through the U.S. They are: 86% of employees are planning their exit for 2013. Only 5% intend stay put. The cost of that kind of turnover could be extraordinary.

Despite this rather alarming finding, however, there’s some good news for employers still struggling to recover financially:  Money is not the most important motivator for the majority of these employees.  This is true for both those employees who intend to leave and for those who will be loyal and stay.

A lot has been written about retention.  Here and here are a couple of articles.  In my experience, as an attorney turned communications liaison, facilitator and mediator focused on helping resolve workplace conflict, I have found that the common denominator about the “real” reasons employees leave is often something as simple as a feeling. That feeling is that they sense they are not receiving respect, not valued, and not heard. Increasingly, it seems that “feeling” is epidemic throughout the American workplace. Call it the Era of the Invisible Employee.

So, what can employers, in the private sector, nonprofit, and government, do to change that feeling?

The first step is to demonstrate that you care and the first step in that is to demonstrate that you are listening. Fortunately, thanks to technology there are cost-efficient ways to do the all important listening. Face-to-face focus groups, which can be expensive and iffy when it comes to confidentiality, are being replaced with interactive blogs, intranets configured like Facebook, and internal wiki mechanisms which can capture nuances. They can be programmed to be anonymous. Guidelines are established for keeping the conversation civil.

The next step is to understand that input. We all know that feelings are not facts. They may be irrational. They may not be aligned with reality. They may reflect ancient resentments. However, feelings dominate how human beings see the world and behave in it. Those feelings are the raw materials managers, especially those in employee communications and human resources, must understand and use to help shape into policies and procedures, which are mutually beneficial to your organizations and to the men and women who work in them.

The good news is that because of these new technology tools, policies and procedures no longer need to be derived from an off-the-shelf, cookie cutter set of best practices. They can more easily be tailored to reflect both the organizational culture and how employees feel about belonging.

A version of this article was previously posted at Jane Genova’s Public Relations and Speechwriting blog.  

Viewing Workplace Conflict as an Opportunity for Growth

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www.WinWinHR.com

Every workplace conflict is rife with positive and negative potential.  It is a choice (conscious or not) whether to make it a source of learning and growth or simmering frustration, stagnation and possible litigation.

In the gender discrimination class action lawsuit filed last week against Greenberg Traurig there is an allegation that

“at a nationwide shareholder meeting in September 2008, roughly a dozen of the Firm’s most highly accomplished female shareholders performed a song about male shareholders cheating them out of originations and decreasing their total compensation.”

The lawsuit claims that the law firm’s senior management did nothing in response.  Click here for a copy of the Complaint.

Query whether Greenberg’s management team missed an opportunity to embrace the simmering conflict and engage in a constructive dialogue about the issues.

What were the lyrics of the song?

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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

 

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

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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

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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

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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, an “employer 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

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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

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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

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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

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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